Florida/Georgia Personal Injury & Workers Compensation

...ed sentencing range for these offenses would have been 55.8 to 93.5 months. [1] Further, because Heggs carried a firearm during the commission of the armed robberies, each of his sentences included a three-year minimum prison term in accordance with section 775.087(2), Florida Statutes (1995)....

...son terms, it is clear that the 1995 version of the statute, as amended by chapter 95-184, Laws of Florida, would apply to Heggs because he committed his offenses on or after October 1, 1995. See Ch. 95-184, § 19, at 1708-10, Laws of Fla. (amending section 775.087, applicable to offenses committed on or after October 1, 1995)....

...g as to the constitutionality of chapter 95-184. Practically, however, this Court's ruling on chapter 95-184 will not entitle Heggs to relief from his minimum mandatory prison terms because he would have received such terms under the 1993 version of section 775.087(2). See § 775.087(2), Fla....

...Fortunately, the bullet passed through the bouncer's leg without causing a fatal injury. The State charged Mr. Sanders with attempted first-degree murder. Because the State maintained that he discharged a firearm and inflicted great bodily harm, it sought to reclassify the felony and impose an enhanced penalty under section 775.087, Florida Statutes (2002), which is commonly referred to as the 10-20-life statute....

...enalty for the main *206 offense or the next greater offense on the verdict form?" We now explain our answer. ANALYSIS Sanders contends that a trial court may not list a necessary or permissible lesser included offense on the verdict form if, due to section 775.087, Florida Statutes (2002), the ten-twenty-life reclassification statute and its enhanced penalties, the potential sentence for the lesser included offense becomes equal to the potential sentence for the charged offense subject to the same reclassification statute and enhanced penalties....

...the jury to determine the existence of circumstances that can result in mandatory minimum sentences, sentence enhancements, or offense reclassifications. [3] Interrogatories *208 have been used successfully for many years under previous versions of section 775.087, Florida Statutes, which now includes the "10-20-life" mandatory penalties....

...the better practice), or (2) the inclusion of a reference to a firearm in identifying the specific crime for which the defendant is found guilty." [3] In addition to offenses subject to reclassifications or enhancements via separate statutes such as section 775.087 (firearm reclassification and mandatory minimum term) or 784.07(2), Florida Statutes (2005) (law enforcement victim), interrogatories should be used for crimes such as burglary and robbery, in which the aggravating factor is part of the statute governing the substantive crime....

...The committee is in agreement that no duty to use "every reasonable means ... to avoid the danger exists under Florida law." See Redondo v. State, 380 So.2d 1107 (Fla.3d DCA 1980) (footnote 1). [Page A-7] *1185 3.05(c) AGGRAVATION OF A FELONY BY COMMITTING AN AGGRAVATED BATTERY (New) F.S. 775.087(1) Note to This instruction should not be given in conjunction with Judge the instructions pertaining to any felony in which the use of a weapon is an essential element. If you find that (defendant) committed (felony as identified by F.S. 775.087(1)) and you also find that during the commission of the crime the defendant committed an aggravated battery, you should find the defendant guilty of (felony) with an aggravated battery. Definitions "Aggravated battery" is legally defined as (read applicable instructions). If you find only that defendant committed (felony, as identified in F.S. 775.087(1)) but did not commit an aggravated battery, then you should find the defendant guilty only of (felony). Explanation of proposed instruction: This instruction is based on the instruction on page 46 of the manual and on amendments to F.S. 775.087(1) in 1989. [Page A-8] *1186 3.05(d) AGGRAVATION OF A FELONY BY POSSESSION OF A FIREARM OR DESTRUCTIVE DEVICE (New) F.S. 775.087(2) If you find that (defendant) committed (felony identified by F.S. 775.087(2)) and you also find that during the commission of the crime the defendant possessed [a firearm] [a destructive device] [a semiautomatic firearm and its high-capacity detachable box magazine] [a machine gun], you should find the defendant guilty of (felony) with (applicable firearm(s)/device). Definitions Give applicable definitions as contained in F.S. 790.001(4), F.S. 790.001(6), F.S. 775.087(2)(b), and F.S. 790.001(9). If you find only that defendant committed (felony, as identified in F.S. 775.087(2)) but did not possess a (applicable firearm(s)/device), then you should find the defendant guilty only of (felony). Explanation of proposed instruction: This is based on the instruction on page 46 of the manual and on amendments to F.S. 775.087(2) in 1989....

Walton was the trial court’s conclusion “that section 775.087, Florida Statutes — the 10-20-Life statute

...scene such portable instruments for the purpose of inflicting injury or causing death. We recognized a similar intent in the general enhancement statute. In State v. Houck, 652 So.2d 359 (Fla.1995), this Court interpreted "weapon" in the context of section 775.087, Florida Statutes (1991), the general enhancement statute....

...charge an offender who uses an automobile or other nonportable weapon during a robbery and injures a victim or bystander. [4] For example, the State could charge such an offender with one count of robbery *415 under section 812.13(2)(c) (enhanced by section 775.087(1)) and with a second count of aggravated battery under section 784.045, Florida Statutes (2002)....

...[3] As the Fifth District noted, for future crimes "the Legislature is free ... to amend the robbery statute to include the use of a deadly weapon, should it choose to do so." Burris, 825 So.2d at 1037. Such a broad proscription for weapons or firearms is already employed in section 775.087, Florida Statutes (2002), which was first enacted in 1974. This section reclassifies certain felonies in which the offender " carries, displays, uses, threatens to use, or attempts to use any weapon or firearm." Id. § 775.087(1) (emphasis added)....

...felony punishable by life imprisonment pursuant to section 810.02(2)(b), Florida Statutes (1989); kidnapping with a firearm, a first-degree felony, pursuant to section 787.01(2), Florida Statutes (1989), which was reclassified to a life felony under section 775.087(1)(a), Florida Statutes (1989), because a firearm was used in the commission of the offense....

...[2] Lamont also received a consecutive life sentence with a fifteen-year habitual offender mandatory minimum on the armed burglary count. Brooks was convicted of second-degree murder pursuant to section 782.04(2), Florida Statutes (1989), a first-degree felony, which was reclassified to a life felony pursuant to section 775.087, Florida Statutes (1989); and another offense which is not relevant to the issue at hand....

...which was classified as a first-degree felony punishable by life imprisonment. 597 So.2d at 829. The district court appears to have rejected Lamont's contention that the first-degree felony should have been reclassified to a life felony pursuant to section 775.087(1)(a)....

...[6] Accordingly, it was error to sentence the petitioners as habitual offenders in connection with their life-felony convictions. We find no merit to Lamont's contention that his conviction of burglary of an occupied dwelling with a firearm should have been reclassified to a life felony under section 775.087(1)(a), Florida Statutes (1989), which provides: Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission o...

...because he was charged with assault or battery as well as with being armed while committing the burglary. Thus, he contends that under our decision in Lareau v. State, 573 So.2d 813 (Fla. 1991), the offense should be enhanced to a life felony under section 775.087(1)(a) and therefore would not be subject to enhanced sentencing under the habitual offender statute....

...lary statute. See Lareau, 573 So.2d at 814 (because conviction was based on great bodily harm provision of aggravated *439 battery statute rather than on use of deadly weapon provision, the use of a weapon was not an essential element of offense and section 775.087(1) could be used to enhance offense)....

...of an occupied dwelling with a firearm," under section 810.02. Because use of a weapon or firearm is clearly an essential element of the offense with which Lamont was convicted, the trial court's failure to enhance the offense to a life felony under section 775.087(1)(a) based on Lamont's use of a firearm was proper....

...VERDICT FORM THAT THE DEFENDANT EITHER CARRIED, DISPLAYED, USED, ETC. ANY WEAPON OR FIREARM OR THAT HE COMMITTED AN AGGRAVATED BATTERY DURING THE COMMISSION OF THE FELONY SUBJECT TO BEING RECLASSIFIED PRECLUDE EXECUTION OF THE MANDATORY LANGUAGE OF SECTION 775.087(1) WHICH REQUIRES THE RECLASSIFICATION OF OFFENSES UNDER CERTAIN CIRCUMSTANCES? We have jurisdiction based on article V, § 3(b)(4) of the Florida Constitution. We rephrase the certified question thusly: MAY A TRIAL COURT RECLASSIFY A FELONY CONVICTION PURSUANT TO SECTION 775.087(1) ABSENT A SPECIFIC FINDING ON THE JURY'S VERDICT FORM THAT A DEFENDANT CARRIED, DISPLAYED, USED, ETC....

...degree murder as charged in the information, but did not include a specific finding by the jury that Tripp used a weapon. Without this finding, the trial court should not have reclassified Tripp's attempted first-degree murder conviction pursuant to section 775.087(1), Florida Statutes (1987)....

...A jury found Tripp guilty of all three charges. The verdict form did not include a specific jury finding that Tripp used a deadly weapon or committed an aggravated battery during the commission of attempted first-degree murder. At sentencing, the trial court, apparently relying on section 775.087(1), reclassified the attempted first-degree murder conviction from a first-degree felony to a life felony because of a deadly weapon....

...e murder and attempted armed robbery. [2] Tripp, 610 So.2d 1311. In reversing the attempted first-degree murder sentence, the court relied on State v. Overfelt, 457 So.2d 1385 (Fla. 1984), and found that before a sentence can be enhanced pursuant to section 775.087, the jury must make a factual finding that the defendant committed the crime while using a firearm either by finding him guilty of a crime involving a firearm or by answering a specific question on a special verdict form....

...We approve the district court's decision reversing the trial court's reclassification of attempted first-degree murder and remanding for resentencing without reclassification. It is so ordered. GRIMES, C.J., OVERTON, SHAW and KOGAN, JJ., and McDONALD, Senior Justice, concur. NOTES [1] Section 775.087(1), Florida Statutes (1987), provides in relevant part: (1) Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the...

...ant commits an aggravated battery, the felony for which the person is charged shall be reclassified... . [2] The district court properly reversed the reclassification of Tripp's attempted armed robbery conviction. Reclassification was improper under section 775.087(1) because attempted armed robbery is a felony in which the use of a weapon is an essential element....

...5th DCA 2008), on the ground that it expressly and directly conflicts with the decisions of the Second District Court of Appeal in Sousa v. State, 976 So.2d 639 (Fla. 2d DCA 2008), and the First District Court of Appeal in Wilson v. State, 898 So.2d 191 (Fla. 1st DCA 2005). [1] This case concerns section 775.087, Florida Statutes (2004)—commonly known as the "10-20-Life" statute—specifically section 775.087(2)(a)(3), which provides that defendants who discharge a firearm during the commission of certain enumerated crimes, including murder and attempted murder, and inflict death or great bodily harm as the result of the discharge shall be...

...This reading of the statute avoids rendering part of the statute mere surplusage and effectuates the Legislature's intent to punish those offenders who possess or use firearms to the fullest extent of the law. Thus, we conclude that the trial court has discretion under section 775.087(2)(a)(3) to impose a mandatory minimum of twenty-five years to life, even if that mandatory minimum exceeds the statutory maximum provided for in section 775.082....

...State, 966 So.2d 429 (Fla. 4th DCA 2007), Thurston v. State, 984 So.2d *743 1290 (Fla. 4th DCA 2008), Leary v. State, 980 So.2d 622 (Fla. 4th DCA 2008), and Johnson v. State, 17 So.3d 847 (Fla. 4th DCA 2009), to the extent that those decisions hold that section 775.087(2)(a)(3) does not vest discretion in the trial judge to impose a mandatory minimum of twenty-five years to life without regard to the statutory maximum for the crime....

...A brief overview of the statutory scheme is helpful to provide context for the facts of this case. Because Mendenhall used a firearm during the commission of the offense, his conviction was reclassified from a second-degree felony to a first-degree felony under section 775.087(1), Florida Statutes (2004)....

...of imprisonment of twenty years), or discharges a firearm and as the result of the discharge, inflicted death or great bodily harm ("minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison"). § 775.087(2)(a)(1)-(3), Fla....

...inal sentence of 35 years' imprisonment, with a 35-year mandatory minimum, was legal." Id. at 667. The court outlined the pertinent parts of the 10-20-Life statute, emphasizing a portion of the first sentence of subsection (2)(c): Pertinent parts of section 775.087 of the Florida Statutes provide as follows: 775.087....

...imposed as authorized by s. 775.082, s. 775.084, or the Criminal Punishment Code under chapter 921, then the sentence imposed by the court must include the mandatory minimum term of imprisonment as required in this section. Id. at 667-68 (quoting §§ 775.087(2)(a)(1), (3), 775.087(2)(c), Fla....

...2d DCA 2008), and the First District's decision in Wilson v. State, 898 So.2d 191 (Fla. 1st DCA 2005), both of which involved defendants convicted of attempted second-degree murder reclassified as a first-degree felony under the 10-20-Life statute. The Second District in Sousa held that section 775.087(2)(a)(3) does not override the language in section 775.082(3)(b) that provides for a thirty-year sentence. 976 So.2d at 640. The Second District reasoned as follows: Mr. Sousa ... was subject to section 775.087(2)(a)(3) of the 10/20/life statute, which required that he be sentenced "to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison." It could be argued that the language of...

...3d DCA 2000); see also Sanders v. State, 912 So.2d 1286, 1292 (Fla. 2d DCA 2005) (describing maximum penalty in appendix to opinion). Id. at 640 (footnote omitted). The First District in Wilson also held that the mandatory minimum term provided for in section 775.087(2)(a)(3) does not override the statutory maximum of thirty years in 775.082(3)(b). The court reasoned that "[a]ppellant is subject to a mandatory minimum sentence of 25 years pursuant to section 775.087(2)(a)3, Florida Statutes (2003).......

...Notwithstanding the minimum mandatory term, the maximum sentence the trial court properly may impose is a sentence of 30 years." 898 So.2d at 192-93. ANALYSIS The conflict issue before this Court is whether, under the 10-20-Life statute, specifically section 775.087(2)(a)(3), a trial court can sentence a defendant to a mandatory minimum sentence that exceeds the statutory maximum sentence provided for in section 775.082. More specifically, the issue in this case is whether the mandated "minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison" under section 775.087(2)(a)(3) gives the trial court the discretion to impose a sentence anywhere within the range of twenty-five years to life, even if that sentence exceeds the statutory maximum of thirty years provided for under section 775.082(2)(c)....

...In analyzing this issue, we first set forth the applicable statutory provisions. We next analyze the language and stated purpose of the statute to determine whether the statute provides trial courts with the discretion to impose a mandatory minimum sentence anywhere in the range of twenty-five years to life under section 775.087(2)(a)(3), even if that sentence exceeds the statutory maximum provided for in section 775.082. We conclude that it does. The 10-20-Life Statute Section 775.087, Florida Statutes, commonly referred to as the 10-20-Life statute, provides for mandatory minimum sentences for offenders who possess or use a firearm in some manner during the commission of certain crimes....

...rs, and other forms of advertising." Id. To that end, the statute requires the imposition of a mandatory minimum sentence where a firearm is possessed or used during the commission of certain enumerated crimes, including murder and attempted murder. § 775.087(2)(a)(1)(a), Fla....

...a minimum term of imprisonment of 10 years" unless the enumerated offense is aggravated assault, possession of a firearm by a felon, or burglary of a conveyance; if so, the defendant "shall be sentenced to a minimum term of imprisonment of 3 years." § 775.087(2)(a)(1), Fla. Stat. If the defendant discharged a firearm during the commission of an enumerated offense, he or she "shall be sentenced to a minimum term of imprisonment of 20 years." § 775.087(2)(a)(2), Fla....

...790.001 and, as the result of the discharge, death or great bodily harm was inflicted upon any person, the convicted person shall be sentenced to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison. § 775.087(2)(a)(3), Fla....

..., and the defendant is not eligible for statutory gain-time under s. 944.275 or any form of discretionary early release, other than pardon or executive clemency, or conditional medical release under s. 947.149, prior to serving the minimum sentence. § 775.087(2)(b), Fla....

...e sentences that could be imposed as authorized by s. 775.082, s. 775.084, or the Criminal Punishment Code under chapter 921, then the sentence imposed by the court must include the mandatory minimum term of imprisonment as required in this section. § 775.087(2)(c), Fla....

...hall be imposed for each qualifying felony count for which the person is convicted. The court shall impose any term of imprisonment provided for in this subsection consecutively to any other term of imprisonment imposed for any other felony offense. § 775.087(2)(d), Fla....

...maximum sentence for a first-degree felony: "For a felony of the first degree, by a term of imprisonment not exceeding 30 years or, when specifically provided by statute, by imprisonment for a term of years not exceeding life imprisonment." However, section 775.087(2)(a)(3) clearly states: "[T]he convicted person shall be sentenced to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison." Section 775.087(2)(c) makes reference to section 775.082 and states that the mandatory minimum, when it exceeds the statutory maximum, must be imposed. In resolving any perceived conflict between the statutory maximum in the general sentencing statute and the mandatory minimum range of twenty-five years to life, we conclude that the specific provisions of section 775.087(2)(a)(3) prevail over the general provisions of the 775.082 regarding statutory maximums....

...qualification of the general terms of the more comprehensive statute to the extent only of the repugnancy, if any." McDonald, 957 So.2d at 610 (quoting Adams v. Culver, 111 So.2d 665, 667 (Fla. 1959)). Under this principle of statutory construction, section 775.087(2)(a)(3), which specifically addresses a situation where a defendant, in the course of certain enumerated felonies, discharges a firearm and, as a result of the discharge, death or great bodily harm is inflicted upon any person, preva...

...In other words, the PRR statute covers sentencing for all crimes, including those involving the use of a firearm. On the other hand, the 10-20-LIFE statute addresses the mandatory minimum sentence for the use or possession of a firearm in some manner during the commission of a specified crime. See § 775.087(2)(c)....

...ol over general statutes and that words in a statute should not be rendered meaningless, but also effectuates the Legislature's clearly stated and unambiguous intent to punish offenders who possess or use firearms "to the fullest extent of the law." § 775.087(2)(d), Fla....

...The Legislature, in enacting the 10-20-Life statute, "very clearly mandated that it is the policy of this State to deter the criminal use of firearms." McDonald, 957 So.2d at 611. This policy is underscored by the statement of legislative intent contained in the act enacting section 775.087(2)(a)(3): WHEREAS, Florida ranks among the most violent states in the nation, and WHEREAS, in 1975 the Florida Legislature enacted legislation requiring a minimum mandatory sentence of three years in prison for possessing a gun during...

...be vigorously prosecuted and that the state demand that minimum mandatory terms of imprisonment be imposed pursuant to this act," id., we conclude that the Legislature intended for trial courts to have discretion to impose a mandatory minimum under section 775.087(2)(a)(3) in the range of "a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison." § 775.087(2)(a)(3), Fla....

...rule of lenity. There is certainly nothing ambiguous about the statute's language that "the convicted person shall be sentenced to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison." § 775.087(2)(a)(3), Fla. Stat. Regardless, we have previously recognized "that the rule of lenity is a canon of last resort." Kasischke v. State, 991 So.2d 803, 814 (Fla.2008). We thus conclude that under section 775.087(2)(a)(3), the trial court has discretion to impose a mandatory minimum within the range of twenty-five years to life....

...State, 966 So.2d 429 (Fla. 4th DCA 2007), Thurston v. State, 984 So.2d 1290 (Fla. 4th DCA 2008), Leary v. State, 980 So.2d 622 (Fla. 4th DCA 2008), and Johnson v. State, 17 So.3d 847 (Fla. 4th DCA 2009), to the extent that those decisions hold that section 775.087(2)(a)(3) does not vest discretion in the trial judge to impose a mandatory minimum of twenty-five years to life without regard to the statutory maximum for the crime....

...CANADY, C.J., and LEWIS, POLSTON, and LABARGA, JJ., concur. PARIENTE, J., dissents with an opinion, in which QUINCE and PERRY, JJ., concur. PARIENTE, J., dissenting. I respectfully dissent to the majority's conclusion that the sentences provided in section 775.087 always trump the statutory maximums in other statutes. Although popularly known as the 10-20-Life statute, section 775.087 is actually entitled "Possession or use of weapon; aggravated battery; felony reclassification; minimum sentence....

..." (Emphasis added.) The very title indicates that the statute is not meant to impose new statutory maximums for gun-related offenses, but rather the intent was to mandate significant statutory minimum sentences. The answer to the statutory construction question— whether section 775.087 always trumps the statutory maximums of 775.082—cannot be resolved by a plain reading of 775.087(2)(a). The Legislature could have easily indicated that section 775.087(2)(a)(3) overrode all statutory maximums provided in 775.082. It did not. Rather, reading 775.082 and 775.087 together, as the doctrine of in pari materia requires and as the Legislature indicates in section 775.087(2)(c), leads to the conclusion that the statutory minimum sentence for a crime in which a firearm is discharged is governed by section 775.087, but that the statutory maximums provided in 775.082 are not overridden unless the statutory maximums of 775.082 are less than the statutory minimums of section 775.087. See § 775.087(2)(c), Fla. Stat. (2004). Simply put, section 775.087, when read together with section 775.082, does not specify overriding of the statutory maximums in all cases and does not provide that the range provided for in section 775.087(2)(a)(3) wholly nullifies any statutory maximum....

...ions in harmony with one another.'" Larimore v. State, 2 So.3d 101, 106 (Fla.2008) (quoting Heart of Adoptions, Inc. v. J.A., 963 So.2d 189, 199 (Fla.2007)). The issue in this case is one of statutory construction that involves the interplay between section 775.087(2), which authorizes mandatory minimum sentences for certain crimes, and section 775.082, which authorizes *752 a maximum sentence of thirty years for the conviction of a first-degree felony. Section 775.087 is meant to be read together with other sentencing statutes such as section 775.082 and is not its own self-contained sentencing scheme. The statute clearly contemplates interplay between itself and other statutes. The Legislature even provided guidance as to how the statute should be read together with section 775.082. See § 775.087(2)(c), Fla. Stat. (2004) (explicitly addressing situations where the mandatory minimum is either more or less than the statutory maximums provided for elsewhere and specifically referencing section 775.082). Thus, we must read section 775.087(2)(a)(3) together with sections 775.087(2)(c) and 775.082....

...The majority ignores the principle of reading the statutes together and instead utilizes the statutory construction principle that a specific statute controls over the general. However, the statutes address different things and are meant to be read together as indicated by section 775.087(2)(c)—section 775.087(2) specifies mandatory minimums whereas section 775.082 specifies statutory maximums. Simply put, although section 775.087 is specific as to statutory minimums, it is not specific as to statutory maximums. Under section 775.087(2)(c), if the " minimum mandatory terms of imprisonment imposed pursuant to this section exceed the maximum sentences authorized by s. 775.082, s. 775.084, or the Criminal Punishment Code under chapter 921, then the mandatory minimum sentence must be imposed." § 775.087(2)(c), Fla....

...are less than the sentences that could be imposed as authorized by s. 775.082, s. 775.084, or the Criminal Punishment Code under chapter 921, then the sentence imposed by the court must include the mandatory minimum term of imprisonment as required in this section." Id. (emphasis added). Based on section 775.087(2)(c), the minimum sentence to be imposed under 775.087 does not trump the statutory maximum provided in 775.082 unless the minimum sentence exceeds the statutory maximum....

...Here, the title of the chapter evinces a legislative intent to mandate significant statutory minimum sentences, not new statutory maximums irrespective of the statutory maximums provided for elsewhere. This brings us to the interpretation of the statutory minimum terms provided in section 775.087(2)(a)....

...or when the mandatory minimum is less than the statutory maximum. It is also clear as to how many years should be imposed or included as the mandatory minimum. The clash between the statutory maximums of section 775.082 and the minimum sentences of 775.087 occurs when applying section 775.087(2)(a)(3), which is the only subsection to provide for a range....

...nce of at least twenty-five years must be imposed as a minimum in all circumstances, it is not clear whether the trial court can impose a minimum term in excess of the statutory maximum of thirty years in this case. An examination of the language of section 775.087(2)(c) reveals another ambiguity: the phrase "the mandatory minimum sentence" as used in subsection (2)(c) and as applied to subsection (2)(a)(3) is ambiguous because it is not clear whether it refers only to the absolute minimum sentence that must be imposed (twenty-five years) or to the entire range. Further, by explicitly stating that statutory maximums in other statutes are trumped by the section 775.087 statutory minimums when the minimum sentence exceeds the statutory maximums, the Legislature failed to address what occurs where there is a range of sentencing options, as there is in section 775.087(2)(a)(3)....

...Thus, the phrase "and not more than ... life" would not apply to this case. However, the majority overlooks situations where the phrase would apply. For example, if a defendant is convicted of a first-degree felony that is enhanced by the 10-20-Life statute to a life felony, see § 775.087(1)(a), Fla. Stat., the maximum *754 sentence would then be life imprisonment. See § 775.082(3)(a)(3), Fla. Stat. (2004). In that situation, sections 775.087(2)(a)(3) and (2)(c) would allow the trial court to impose a mandatory minimum sentence up to life. Accordingly, while the phrase "and not more than ... life" would not apply in this case, there are situations in which it would apply. Thus, this interpretation of the statute does not render the phrase meaningless. Further, while section 775.087(2)(d) provides that the Legislature intends that offenders who possess and use firearms should be punished "to the fullest extent of the law," that same section also expresses its intent that the " minimum terms of imprisonment shall be imposed." (Emphasis added.) Once again, this evinces an intent for courts to impose the minimum terms of imprisonment provided for in section 775.087(2)(a), even those that might be in excess of a statutory maximum in another statute....

...struction of an ambiguous statute would result in such harsh consequences. Mendenhall was convicted of a second-degree felony, which carries a maximum sentence of fifteen years. See § 775.082(3)(c), Fla. Stat. (2004). His conviction was enhanced by section 775.087(1)(b) to a first-degree felony, the maximum sentence for which is thirty years. See § 775.082(3)(b), Fla. Stat. Further application of section 775.087 requires an absolute minimum mandatory sentence of twenty-five years to be imposed, meaning that Mendenhall will serve at least twenty-five years because the 10-20-Life statute provides that a defendant is not eligible for gain-time or any other form of discretionary early release (other than pardon or executive clemency) prior to serving the minimum sentence. Under my view of section 775.087(2)(a)(3), the sentence for Mendenhall's offense after both enhancements increases from a maximum of fifteen years to a maximum sentence of thirty years with a mandatory minimum sentence between twenty-five and thirty years....

...as Mendenhall's without express legislative authorization, but rather by judicial construction of the statute, works an injustice and is contrary to our doctrine of separation of powers. CONCLUSION The Legislature has not evinced a clear intent for section 775.087(2)(a)(3) to override all statutory maximums. Rather, the Legislature gave guidance as to how section 775.087(2)(a)(3) should be read together with section 775.082, which is a clear indication that statutory maximums were meant to play some role in sentencing under the statute. See § 775.087(2)(c), Fla....

...[3] The Fifth District certified conflict with Collazo, Johnson, Thurston, and Leary in a case concerning the same issue as this case, which is pending review in this Court. See Booth v. State, 18 So.3d 1142 (Fla. 5th DCA 2009) (pending currently in this Court as Case No. SC09-1832). [4] Section 775.087(2)(a)(3) was added to the statute in 1999, when the Legislature increased the minimum sentence from three years for all crimes where the defendant possessed a firearm to ten years for possession of a firearm, twenty years for discharg...

...erm of imprisonment of life in prison" for crimes in which the defendant discharged a firearm and the discharge resulted in death or great bodily harm. See ch. 99-12, § 1, Laws of Fla. The Legislature also added the statement of intent contained in section 775.087(2)(d)....

...hancement *323 statute. See, e.g., Hale, 630 So.2d at 525 (finding no such authorization in the habitual offender statute). In fact, in Palmer v. State, 438 So.2d 1, 3, 4 (Fla.1983), in considering the same enhancement statute at issue in this case, section 775.087, we found no express authority to impose a sentence, without eligibility of parole, greater than three calendar years. The portions of section 775.087(2)(a), Florida Statutes (1991), which pertain to Boler's sentence have not changed since we issued our opinion in Palmer....

...299, 52 S.Ct. 180, 76 L.Ed. 306 (1932). [6] In Carawan v. State, 515 So.2d 161, 167 (Fla. 1987), we concluded that the legislature "does not intend to punish the same offense under two different statutes." [7] § 775.082(1), Fla. Stat. (1991). [8] § 775.087(2)(a)1., Fla....

...State, 701 So.2d 398 (Fla. 5th DCA 1997), based upon the following certified question of great public importance: IN A CASE WHERE THERE IS ONLY ONE DEFENDANT AND ASSAILANT, WHO HAS BEEN CONVICTED OF CRIMES FOR WHICH THE PENALTIES MAY BE ENHANCED PURSUANT TO SECTION 775.087(1) AND FOR WHICH MANDATORY SENTENCES MAY BE IMPOSED PURSUANT TO SECTION 755.087(2), IF THE DEFENDANT USED A WEAPON OR FIREARM, IS IT SUFFICIENT TO SUSTAIN THOSE ENHANCED PENALTIES IF THE JURY FINDS THE DEFENDANT GUILTY OF HAVING COMMI...

...On those charges, the jury found Overfelt guilty of the lesser included offenses of attempted third-degree murder on one count, and aggravated assault on the other count. Id. The trial judge reclassified the third-degree murder conviction as a third-degree felony, citing section 775.087(1), Florida Statutes (1983), which allowed the degree of the felony to be reclassified whenever the perpetrator of the felony carried, displayed, used, threatened, or attempted to use any weapon or firearm....

...n to be the finder of fact with regard to matters concerning the criminal episode. To allow a judge to find that an accused actually possessed a firearm when committing a felony in order to apply the enhancement or mandatory sentencing provisions of section 775.087 would be an invasion of the jury's historical function and could lead to a miscarriage of justice in cases such as this where the defendant was charged with but not convicted of a crime involving a firearm....

...r the category two lesser included offense of Disobedience to Police, see Koch v. State, 39 So.3d 464 (Fla. 2d DCA 2010). This instruction was adopted in 2008 [976 So.2d 1081] and amended in 2011. 3.3(a) AGGRAVATION OF A FELONY BY CARRYING A FIREARM § 775.087(1), Fla. Stat. If you find that (defendant) committed (felony as identified by § 775.087(1), Fla....

...rearm silencer; any destructive device; or any machine gun. The term "firearm" does not include an antique firearm unless the antique firearm is used in the commission of a crime. If you find only that (defendant) committed (felony, as identified in § 775.087(1), Fla....

...Rodriguez, 602 So.2d 1270 (Fla.1992), that a defendant's offense may not be reclassified for a codefendant's possession of a firearm during a felony. This instruction was adopted in 1981 and amended in 2011. 3.3(b) AGGRAVATION OF A FELONY BY CARRYING A WEAPON OTHER THAN A FIREARM § 775.087(1), Fla. Stat. If you find that (defendant) committed (felony, as identified by § 775.087(1), Fla....

...d [him] [her] guilty of (felony) with a weapon. Definition. *148 A "weapon" is legally defined to mean any object that could be used to cause death or inflict serious bodily harm. If you find only that (defendant) committed (felony, as identified in § 775.087(1), Fla....

...Rodriguez, 602 So.2d 1270 (Fla.1992), that a defendant's offense may not be reclassified for a codefendant's possession of a firearm during a felony. This instruction was adopted in 1981 and amended in 2011. 3.3(c) AGGRAVATION OF A FELONY BY COMMITTING AN AGGRAVATED BATTERY § 775.087(1), Fla. Stat. If you find that (defendant) committed (felony as identified by § 775.087(1), Fla....

...battery. Definition. "Aggravated battery" is legally defined as (read applicable instructions adapt, as required by the allegations and evidence, from Instructions 8.4 or 8.4(a)). If you find only that (defendant) committed (felony, as identified in § 775.087(1), Fla....

...Gen., West Palm Beach, for respondent. PER CURIAM. We accepted jurisdiction to resolve an asserted conflict between Lareau v. State, 554 So.2d 638 (Fla. 4th DCA 1989), and Bradfield v. State, 438 So.2d 1005 (Fla. 2d DCA 1983). [1] The issue is whether section 775.087(1) of the Florida Statutes (1985) authorizes a trial court to reclassify aggravated battery from a second-degree felony to a first-degree felony when the defendant uses a deadly weapon to commit the offense defined in section 784.045(1)(a) of the Florida Statutes (1985)....

...of a firearm thus was incidental to the offense to which he pled; and that because the use of a weapon or firearm was not an element of section 784.045(1)(a), the trial court appropriately reclassified the crime as a first-degree felony pursuant to section 775.087(1)(b). That statute provides in relevant part: 775.087 Possession or use of weapon; aggravated battery; felony reclassification; minimum sentence....

...(b) In the case of a felony of the second degree, to a felony of the first degree. By basing Lareau's conviction on section 784.045(1)( a ) and not on section 784.045(1)( b ), the trial and district courts determined, as the state argues here, that the use of a weapon was not an essential element of the crime, and therefore section 775.087(1)(b) could be used to enhance the penalty. Lareau alleges that the Fourth District Court's decision conflicts with Bradfield, where the Second District Court said "aggravated battery is already an enhanced penalty offense not subject to being further enhanced by the use of section 775.087(1)." Bradfield, 438 So.2d at 1005. The facts of this case require us to examine the interplay of the reclassification statute, section 775.087(1), with the aggravated battery statute, section 784.045. We first note that both provisions took their current form in the same legislative act, chapter 74-383, sections 9, 20, Laws of Florida. There, the legislature created the reclassification statute, section *815 775.087, and substantially reworded the aggravated battery statute by adding to section 784.045 subsection (1)(b) to reclassify as a second-degree felony the misdemeanor crime of simple battery when the battery is committed with a deadly weapon. Both sections 775.087 and 784.045 were intended to serve the same purpose: to increase the punishment of violent felonies as the degree of actual injury or potential for serious injury becomes great....

...Section 784.045(1)(b) effectively reclassifies as a second-degree felony the crime of simple battery when a deadly weapon is used, by supplementing the statutory definition of aggravated battery to include the use of a deadly weapon. Simple battery, a first-degree misdemeanor, is not subject to reclassification pursuant to section 775.087(1), which applies only to felonies. Aggravated battery with the use of a deadly weapon, section 784.045(1)(b), is not subject to reclassification pursuant to section 775.087(1) because the use of a weapon is an essential element of the crime. However, section 775.087(1) permits reclassification and the consequential enhancement of penalties for the crime of aggravated battery causing great bodily harm, section 784.045(1)(a), when a weapon is used to commit the crime....

...); aggravated battery causing great bodily harm is a second-degree felony (section 784.045(1)(a)); and aggravated battery causing great bodily harm and involving the use of a deadly weapon is a first-degree felony (section 784.045(1)(a), enhanced by section 775.087(1) by virtue of the use of a weapon or firearm)....

...d the provision defining aggravated battery involving the use of a deadly weapon, and it conforms with the legislative intent of increasing the punishment of violent crimes that involve a weapon or firearm. It is also consistent with the language in section 775.087(1) providing for reclassification of felonies where the use of a weapon or firearm is not an essential element of the crime....

...s opinion. It is so ordered. SHAW, C.J., and OVERTON, McDONALD, BARKETT and GRIMES, JJ., and EHRLICH, Senior Justice, concur. KOGAN, J., dissents. NOTES [1] We have jurisdiction pursuant to article V, section 3(b)(3) of the Florida Constitution. [2] Section 775.087(2)(a) of the Florida Statutes (1985) provides: (2) Any person who is convicted of: (a) Any murder, sexual battery, robbery, burglary, arson, aggravated assault, aggravated battery, kidnapping, escape, breaking and entering with intent...

...during the commission of certain specified crimes, [2] indicating that in construing the statute to encompass aiders and abettors who are principals in the first degree to those crimes the court has passed on a question of great public interest. [3] Section 775.087(2), Florida Statutes (1975), prescribes a three year minimum term of imprisonment for any person convicted of robbery (and other enumerated crimes) "who had in his possession" a firearm....

...Petitioner was sentenced under this provision after a conviction for armed robbery "not predicated on her personal possession of the firearm but rather on her active and knowing aid to him who did possess it". [4] The district court affirmed her sentence on the basis that vicarious possession of a firearm is punishable under Section 775.087(2)....

...ns to remand to the trial judge for an appropriate sentence in accordance with this opinion. It is so ordered. OVERTON, C.J., SUNDBERG and HATCHETT, JJ., concur. KARL, J., dissents. NOTES [1] Earnest v. State, 342 So.2d 1024 (Fla. 1st DCA 1977). [2] § 775.087(2), Fla....

...1st DCA 1972); Frank v. State, 199 So.2d 117 (Fla. 1st DCA 1967); Spataro v. State, 179 So.2d 873 (Fla. 2d DCA 1965). [8] We note that the statute as originally enacted provided a minimum sentence for conviction of certain felonies "involving" a firearm. § 775.087(2), Fla....

...ortions of the record on which it relied; (2) that the state trial court violated his due process rights in retaining jurisdiction over petitioner’s sentences; and (3) that the trial court’s use of the enhanced sentencing provisions of Fla.Stat. 775.087(1) violated the double jeopardy clause....

...Public Defender, Eleventh Judicial Circuit, Miami, for respondent. OVERTON, Justice. We have for review State v. Rodriguez, 582 So.2d 1189 (Fla. 3d DCA 1991), in which the Third District Court of Appeal certified the following question as being of great public importance: Does the enhancement provision of subsection 775.087(1), Florida Statutes (1983), extend to persons who do not actually possess the weapon but who commit an overt act in furtherance of its use by a coperpetrator? Id. at 1191. We have jurisdiction [1] and answer the question in the negative, finding, in accordance with the district court decision, that section 775.087(1) does not, by its terms, allow for vicarious enhancement because of the action of a codefendant....

...The relevant facts reflect that Rodriguez was charged with an attempt to commit murder in the first degree upon allegations that he and his codefendant fired a deadly weapon at Officer Kenneth Nelson, in violation of sections 782.04(1), 777.04(1), and 775.087, Florida Statutes (1983)....

...Rodriguez and his codefendant were apprehended and charged by information as previously noted. Rodriguez was convicted of attempted first-degree murder. His sentence was enhanced on the grounds that he "used" the firearm in the commission of this offense. The issue in this proceeding is the enhancement of the sentence under section 775.087(1), which reads as follows: (1) Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such felony th...

...fied as follows: (a) In the case of a felony of the first degree, to a life felony. (b) In the case of a felony of the second degree, to a felony of the first degree. (c) In the case of a felony of the third degree, to a felony of the second degree. § 775.087(1), Fla....

...lony standard and directed that he be resentenced for attempted first-degree murder under sections 782.04(1) and 777.04. On appeal, the Third District Court of Appeal affirmed, noting that it had "previously ruled that `the enhancement provisions of section 775.087(1) ......

...was distinguishable. We agree that Menendez should not apply because the factual circumstances are distinguishable. We hold that, when a defendant is charged with a felony involving the "use" of a weapon, his or her sentence cannot be enhanced under section 775.087(1) without evidence establishing that the defendant had personal possession of the weapon during the commission of the felony....

...ing the commission or attempt to commit a crime will result in additional sentence points. Eighteen sentence points shall be assessed where the defendant is convicted of committing or attempting to commit any felony other than those enumerated in subsection 775.087(2)[ [1] ] while having in his or her possession a firearm as defined in subsection 790.001(6).... Twenty-five sentence points shall be assessed where the offender is convicted of committing or attempting to commit any felony other than those enumerated in subsection 775.087(2) while having in his or her possession a semiautomatic weapon as defined in 775.087(2).......

...Justice, SB 44-B, Staff Analysis 9 (May 24, 1993) (on file with comm.)(emphasis added). As the enacted version of section 921.0014 and rule 3.702(d)(12) reflects, the legislature subsequently replaced the language regarding mandatory minimum sentences with a direct reference to section 775.087(2), which in turn provides for minimum mandatory sentences *444 for the enumerated offenses if a firearm is involved. Thus, by excluding the crimes listed in section 775.087(2), which mandates a three-year mandatory minimum sentence if a firearm is used, the legislature clearly intended not to assess additional sentencing points to those offenses already factoring the use of a firearm into the punishment of the offense. Under any other interpretation, the exclusion of the enumerated offenses from enhancement would make no sense. We are also aided in our analysis by examining other similar statutory schemes providing for enhancement. For example, under section 775.087(1), Florida Statutes (1993), where a defendant commits a felony during which he or she carries a firearm, the felony for which the accused is charged will be reclassified to a higher degree, and thereby carry a greater punishment. However, the statute specifically excludes from this reclassification any felonies in which the use of a firearm is an essential element of the crime. In construing section 775.087(1), this Court has held that a crime may not be enhanced pursuant to section 775.087(1) where the use of the firearm is an essential element of the crime, or the crime is charged as requiring the use of a firearm and the jury is so instructed....

...The sentencing guidelines are structured such that the offender receives certain points for the primary offense and additional points for other factors, in addition to the offense, such as a prior record or possession of a firearm. Rule 3.702(d)(12), like section 775.087, is an enhancement provision, enhancing the penalty for particular offenses by assessing additional sentencing points when the defendant carries or uses a firearm in committing an offense that could otherwise be committed without the possession of a firearm. As illustrated by section 775.087(1), we conclude that the legislature would not ordinarily assess additional punishment for the same act of possession of a firearm, where concealment of a weapon and possession of a firearm by a felon are independently punishable crimes specifically predicated upon possession of a firearm....

...Allowing additional sentencing points would be tantamount to holding that the legislature intended to allow the presence of the firearm to be considered still a third time, a policy directly contrary to that expressly espoused in the almost identical enhancement scheme set out in section 775.087(1) and one we will not infer absent more specific expression....

...When the language of a rule and a statute are plain, we have no choice but to apply it if we follow this Court's precedent. Brown v. State, 23 Fla. L. Weekly S266, 267, 715 So.2d 241, 242 (Fla. May 14, 1998). NOTES [1] The felonies enumerated in subsection 775.087(2), Florida Statutes (1993) are: murder, sexual battery, robbery, burglary, arson, aggravated assault, aggravated battery, kidnapping, escape, breaking and entering with intent to commit a felony, an attempt to commit any of the aforementioned crimes, or any battery upon a law enforcement officer or firefighter....

...Under this section, if a firearm is used during the commission of one of the enumerated offenses, the trial judge must impose a mandatory minimum sentence of three years imprisonment. Further, the statute provides that a defendant punished accordingly is not subject to early release during the three-year minimum. § 775.087(2), Fla....

...Rule 3.702(d)(12) mirrors section 921.0014, Florida Statutes (1993). Under the worksheet key to section 921.0014: Possession of a firearm or destructive device: If the offender is convicted of committing or attempting to commit any felony other than those enumerated in s. 775.087(2) while having in his possession a firearm as defined in s. 790.001(6), an additional 18 sentence points are added to the offender's subtotal sentence points. Possession of a semiautomatic weapon: If the offender is convicted of committing or attempting to commit any felony other than those enumerated in s. 775.087(2) while having in his possession a semiautomatic firearm as defined in s. 775.087(2) or a machine gun as defined in s....

...The medical examiner's testimony reflects that the accumulation of the wounds *237 to Willie's body caused his death by pneumonia. PENALTY PHASE In his first penalty phase claim, Calvin argues that the trial judge erroneously imposed three-year mandatory minimum sentences under section 775.087(2), Florida Statutes (1995), for his convictions for attempted first-degree murder, attempted robbery, and robbery with a firearm. To be subject to the three-year mandatory minimum sentence under section 775.087(2), a defendant must have possessed a firearm or destructive device during the commission of an enumerated felony....

...rearm or by answering a specific question of a special verdict form so indicating." State v. Overfelt, 457 So.2d 1385, 1387 (Fla.1984) (emphasis added). In the present case, each of the relevant counts of the indictment charged Calvin with violating section 775.087....

...during the course of a burglary; and (4) the imposition of the death penalty is disproportionate in this case. [3] Calvin concedes that the counts of the indictment charging him with attempted robbery and robbery with a firearm alleged violations of section 775.087. However, Calvin claims that because the count charging him with attempted first-degree murder did not allege a violation of section 775.087, he cannot receive the mandatory minimum sentence for his conviction....

As part of Florida’s 10/20/Life Statute, section 775.087(2)(a)3., Florida Statutes (2009), provides

...prisonment, with a three-year mandatory minimum term for the aggravated assault conviction. The consecutive sentences totaled 105 years of imprisonment, with a mandatory minimum sentence of fifty-three years pursuant to the enhancement provisions of section 775.087, Florida Statutes (1999), the "10-20-life" statute. The Second District Court of Appeal reversed the sentence, holding that section 775.087(2)(d) did not "provide the legislative authorization necessary to require consecutive sentencing" for the mandatory minimum terms of his sentences....

...The court also imposed the mandatory minimum sentence of three years on each robbery count, for a total of thirty-nine years, without eligibility for parole. This Court reversed the three-year mandatory minimum sentences on each of the thirteen consecutive sentences, holding that section 775.087, Florida Statutes (1981), did not authorize a trial court to deny a defendant the eligibility for parole for a period greater than three calendar years....

...role for only three years. Palmer, 438 So.2d at 3. We further clarified our holding as follows: "[w]e do not prohibit the imposition of multiple concurrent three-year minimum mandatory sentences upon conviction of separate offenses included under subsection 775.087(2), nor do we prohibit consecutive mandatory minimum sentences for offenses arising from separate incidents occurring at separate times and places." Id....

...secutively. Id. Christian asserted that the trial court could not impose consecutive sentences because the multiple mandatory minimum terms were based on a single firearm used in one continuous episode. This Court disagreed, holding that even though section 775.087, Florida Statutes (1993), was silent concerning the stacking of mandatory minimum terms, case law permitted imposing consecutive mandatory minimum sentences for offenses arising from a single criminal episode "where the violations of...

...issible when a defendant shoots at multiple victims. Next, the State asserts that there is new legislative authority for imposing consecutive mandatory minimum sentences. Specifically, subsequent to our decision in Christian, the Legislature amended section 775.087 in 1999 to add subsection (2)(d): It is the intent of the Legislature that offenders who actually possess, carry, display, use, threaten to use, or attempt to use firearms or destructive devices be punished to the fullest extent of th...

...The court shall impose any term of imprisonment provided for in this subsection consecutively to any other term of imprisonment imposed for any other felony offense. Ch. 99-12, § 1, at 540, Laws of Fla. (emphasis added). Following the amendment of this statute, the Third District Court of Appeal considered whether section 775.087(2)(d) permits consecutive mandatory minimum sentences in Mondesir v....

...All of the sentences in both the probation and the new case, however, were ordered to be served concurrently. On appeal, the State contended the trial court erred in imposing concurrent sentences. The court agreed in part and disagreed in part. Specifically, the court found that section 775.087(2)(d), Florida Statutes (2000), required that the substantive firearm sentences be imposed consecutively to those in the cocaine case. Id. However, the court disagreed with the State that the statute also required consecutive sentences as to each of the four firearm offenses. In reaching this decision, the court held that the last sentence of section 775.087(2)(d), which states "[t]he court shall impose any term of imprisonment provided for in this subsection consecutively to any other term of imprisonment imposed for any other felony offense," means that sentences imposed pursuant to section 775.087(2)(d) must only be consecutive to other felony sentences from a separate crime rather than those involved in a single prosecution: Merely on the face of the statute, the reference to "any other" felony refers, as in this case, only to another separate crime, rather than those involved in a single prosecution. In the comments to its Final Analysis of CS/CS/HB 113 (SB 194), which became Chapter 99-12, Laws of Florida, and subsection 775.087(2), the Committee on Crime and Punishment in the House of Representatives so stated: Consecutive Sentences The bill provides that the Legislature intends for the new minimum mandatory sentences to be imposed for each qualifying count,...

...Mondesir, 814 So.2d at 1173 (footnote and emphasis omitted). In the present case, the Second District applied the reasoning in Mondesir to circumstances in which there were shootings of multiple victims in a single criminal episode, holding that the last sentence of section 775.087(2)(d) means that sentences received pursuant to section 775.087(2)(d) must only be consecutive to other felony sentences not subject to section 775.087(2)(d). Sousa, 868 So.2d at 538. Accordingly, the court below held that the trial court was prohibited from imposing consecutive mandatory minimum sentences because it was not authorized by section 775.087(2)(d), Florida Statutes (1999). [1] We disagree that section 775.087 as amended still does not permit consecutive sentences. To draw that conclusion we would have to find that the 1999 amendment to section 775.087 overrules our decisions in Christian and Thomas....

...ee Aetna Cas. & Sur. Co. v. Huntington Nat'l Bank, 609 So.2d 1315, 1317 (Fla.1992), and that courts "are not at liberty to add words to statutes that were not placed there by the Legislature." Hayes v. State, 750 So.2d 1, 4 (Fla.1999). In this case, section 775.087(2)(d) states that "[t]he court shall impose any term of imprisonment provided for in this subsection consecutively to any other term of imprisonment imposed for any other felony offense." The Second District, in following the holding...

...ian, 693 So.2d at 993. Christian asserts that where multiple mandatory minimum terms are based on a single firearm used in one continuous episode, only concurrent terms can be imposed. He contends that the district court ruled properly. We disagree. Section 775.087, Florida Statutes (1993), authorizes imposition of a three-year mandatory minimum term for use of a firearm during the commission of certain crimes: (2)(a) Any person who is convicted of: 1....

...aking and entering with intent to commit a felony, or aircraft piracy, or any attempt to commit the aforementioned crimes ... .... and who had in his possession a "firearm"... shall be sentenced to a minimum term of imprisonment of 3 calendar years. § 775.087, Fla....

...State, 890 So.2d 1256 (Fla. 2d DCA 2005), on the issue of whether the mandatory minimum sentence under the Prison Releasee Reoffender (PRR) statute, section 775.082(9) Florida Statutes (2000), must be imposed concurrently with a lesser mandatory minimum sentence under section 775.087, Florida Statutes (2000) (the 10-20-LIFE statute)....

...We affirm the trial court's denial of all five claims. We write to address two of the claims and sit en banc to recede from a series of prior decisions by this court which the state has shown are clearly contrary to the plain meaning and legislative intent of the 10-20-LIFE statute. § 775.087, Fla....

...§ 775.082(9)(b), Fla. Stat. (2000). In addition to these mandatory minimum life sentences as a PRR, the trial court imposed concurrent ten-year mandatory minimum sentences on these counts for McDonald's possession of a firearm during the offenses. § 775.087(2)(a)1, Fla....

...rrently with a greater PRR sentence. However, in McDonald, after thoroughly reviewing the language of the 10-20-LIFE statute, the Fourth District receded from its prior decisions. The pertinent language of the 10-20-LIFE statute provides as follows: 775.087 Possession or use of weapon; aggravated battery; felony reclassification; minimum sentence.— ....

...minimum sentences under the 10-20-LIFE statute and the PRR statute be imposed concurrently even where, as here, the 10-20-LIFE sentence is less than the PRR sentence. Id. The Fourth District further concluded that the legislative intent expressed in section 775.087(2)(d), that violators be "punished to the fullest extent of the law," is the same clear intent expressed in section 775.082(9)(d)(1) that was noted by this Court in Grant....

...this case, it is proper to construe it in pari materia with the PRR statute. The 10-20-LIFE statute clearly expresses the Legislature's intent that the 10-20-LIFE sentence be imposed concurrently even where another statutory sentence is greater. See § 775.087(2)(c) ("If the mandatory minimum terms of imprisonment pursuant to this section are less than the sentences that could be imposed as authorized by s. 775.082 [including the PRR statute] . . ., then the sentence imposed by the court must include the mandatory minimum term of imprisonment as required in this section."). Moreover, the two related provisions of chapter 775—the 10-20-LIFE statute, section 775.087, and the PRR statute, section 775.082—should be construed in pari materia....

...eflect the Legislature's intent concerning alimony). And, as the Fourth District found, both the 10-20-LIFE statute and the PRR statute have a common legislative intent to "punish to the fullest extent of the law." McDonald, 912 So.2d at 76 (quoting § 775.087(2)(d), Fla....

...In other words, the PRR statute *611 covers sentencing for all crimes, including those involving the use of a firearm. On the other hand, the 10-20-LIFE statute addresses the mandatory minimum sentence for the use or possession of a firearm in some manner during the commission of a specified crime. See § 775.087(2)(c)....

...Additionally, the Fourth District properly concluded that the language of the 10-20-LIFE statute plainly requires that the mandatory minimum sentence be imposed concurrently with the minimum mandatory sentence of the PRR statute even though the 10-20-LIFE sentence is less than the PRR sentence. See § 775.087(2)(c)....

...This mandate is underscored by the widespread promulgation of the 10-20-LIFE law beyond mere statutory notice, through television commercials, posters, and other forms of advertising. This policy is further underscored by the statement of legislative intent in section 775.087, which was added in 1999, see ch. 99-12, § 1, at 538-42, Laws of Fla., and the accompanying increase to the mandatory minimum sentence under section 775.087 from three years for all crimes to ten years for all crimes except aggravated assault, possession of a firearm, or burglary....

...o use guns to commit violent crimes be vigorously prosecuted and that the state demand that minimum mandatory terms of imprisonment be imposed pursuant to this act, NOW, THEREFORE, Be It Enacted by the Legislature of the State of Florida: Section 1. Section 775.087, Florida Statutes, is amended....

...As we mentioned above, pursuant to section 241(a)(2)(C) of the INA any alien who is convicted of using a firearm in violation of any law is deportable. The petitioner was charged with and convicted of “first degree murder with a pistol” pursuant to Florida Statutes sections 782.04 and 775.087....

...(2)(a) Any person who is convicted of: 1. Any murder, sexual battery, robbery burglary, arson ... who had in his possession a “firearm” as defined in § 790.001(6) ... shall be sentenced to a minimum term of imprisonment of 3 calendar years. Fla.Stat. § 775.087....

...ence, i.e. it is relevant only to sentencing. Therefore, she argues, she was not convicted of a firearms offense, but an offense whose sentence was merely enhanced because she used a firearm. 3 The Florida courts have rejected that interpretation of section 775.087. For example one Florida court has held that attempted first-degree murder “becomes the enhanced offense of attempted first-degree murder with a firearm under section 775.087.” Burgess v....

...State, 524 So.2d 1132, 1134 (Fla.Dist.Ct.App.1988) (emphasis added). The statute enhances and reclassifies the entire offense, not merely the sentence. Moreover Florida courts have consistently held that conviction for commission of a felony with a firearm (e.g., murder with a pistol) under section *990 775.087 includes the lesser offense of use or possession of a firearm during the commission of a felony, see Bradshaw v....

...ng convicted of both crimes. Futrell v. State, 627 So.2d 26 (Fla.Dist.Ct.App.1993). If double jeopardy prohibits a conviction for a second firearms offense, the first conviction must necessarily be for a firearms offense as well. Furthermore, before section 775.087 will apply, the State must present “evidence establishing that the defendant had personal possession of the [firearm] during the commission of the felony,” State v....

...it did not make the crime a firearms offense. The statute in Rodriguez is wholly distinguishable from the Florida statutes in this case for three reasons. First, the Florida statute did not, and could not, serve to enhance the petitioner's sentence. Section 775.087 upgrades felonies one level and provides a minimum sentence of three years if the defendant used a firearm....

sentence for robbery with a firearm required by section 775.087(2), Florida Statutes (2008). 46 So.3d at 82-83

...Bundrage was found guilty after a jury trial of possession of a firearm by a felon, contrary to section 790.23, Florida Statutes (1999). At sentencing, the trial court imposed a three-year minimum mandatory sentence for the charge under the sentencing provision in section 775.087(2)(a)(1), Florida Statutes (1999)....

...eding fifteen years for second-degree felony), 775.083 (providing for fines), or 775.084 (sentencing provisions for violent career criminals, habitual and violent felony offenders, and three-time felony offenders). Bundrage was sentenced pursuant to section 775.087, which is titled "Possession or use of weapon; aggravated battery; felony reclassification; minimum sentence." Section 775.087(2)(a)(1) provides for a minimum mandatory sentence for any person who actually possesses a firearm during the commission of certain offenses, including possession of a firearm by a felon. Bundrage argues that the trial court erred by imposing the three-year minimum mandatory sentence. He asserts that sections 775.087(2)(a)(1) and 790.23 either set forth separate crimes, in which case he was convicted of a crime not charged, or they provide different punishments for the same crime, in which case the statutes are ambiguous because the sentencing provisions in the two statutes conflict....

...If the statutes are ambiguous, Bundrage asserts that under the rule of lenity, the trial court was required to impose the sentence most favorable to him, which would be a sentence under the criminal punishment code, as provided for in sections 790.23 and 775.082. We interpret section 775.087(2)(a)(1) to be a sentencing enhancement statute, not a statute prescribing a new offense....

...Possession of a firearm by a convicted felon can be proven either by an actual or a constructive possession theory. See Daniels v. State, 718 So.2d 1274 (Fla. 2d DCA 1998); Wilcox v. State, 522 So.2d 1062 (Fla. 3d DCA 1988). Thus, in order to apply the enhancement provision of section 775.087(2)(a)(1), the State must prove actual possession....

...The jury found Bundrage "guilty of possession of a firearm by a convicted felon, as charged in the information." The information charged that Bundrage did "knowingly own or be in the care, custody, possession, or control of a firearm, contrary to Florida Statute 790.23." The information did not make reference to section 775.087, [1] and the language used to charge Bundrage could support a constructive possession theory....

...rse the three-year minimum mandatory sentence and remand for imposition of a sentence under the criminal punishment code. Reversed and remanded for resentencing. CASANUEVA and SALCINES, JJ., Concur. NOTES [1] An information does not have to refer to section 775.087 for the enhancement to apply, see Bryant v....

...murder with a firearm, armed robbery, and armed burglary. After entering a negotiated plea, Franke was sentenced to fifty years' imprisonment on each of the three charges, with a three-year mandatory minimum on each charge for use of a firearm. See § 775.087(2), Fla....

...y years. Franke alleged the same claim with respect to his sentences for armed robbery and armed burglary; that is, he argued that the fifty-year sentences are illegal *426 because they were reclassified to life felonies due to the use of a firearm, § 775.087(1)(a), and thus subject to either life imprisonment or a forty-year maximum sentence. In fact, however, the sentencing documents reflect no reclassification. Indeed, the trial court could not have reclassified the offenses because the use of a firearm is an essential element of each of them. See § 775.087(1); State v....

...earm. Reversed in part and remanded with instructions; affirmed in part. FULMER and LaROSE, JJ., Concur. NOTES [1] Attempted first-degree murder, §§ 782.04(1)(a), 777.04(1), (4)(a), with a firearm is a life felony due to the firearm enhancement of section 775.087(1)(a)....

...and the other involving the grandson's fishing equipment. Found guilty as charged, appellant was given consecutive 30-year sentences, with minimum confinement of three years on each charge on the ground that he was armed at the time of the offense. § 775.087, Fla....

...pment of drugs from out of state. We therefore find no merit in appellant's first contention and affirm his conviction on the two separate charges. We find merit, however, in appellant's contention that he is not subject to minimum confinement under section 775.087....

...He was convicted of the lesser included offenses of third-degree murder with a firearm, and three counts of aggravated battery with a firearm. The trial court enhanced the third-degree murder conviction, which is a second-degree felony when committed without a firearm, to a first-degree felony pursuant to section 775.087(1)(b), Florida Statutes (1987)....

...The district court affirmed but acknowledged conflict with Franklin v. State . We find that this issue is controlled by Lareau v. State, 573 So.2d 813 (Fla. 1991), where we held that although aggravated battery causing great bodily harm can be enhanced pursuant to section 775.087(1) because the use of a weapon is not necessary to cause great bodily harm, the crime of aggravated battery with the use of a deadly weapon is not subject to reclassification because the use of a weapon is an essential element of the crime....

...I believe the trial judge correct in treating it as such and under these circumstances *934 disagree that Lareau v. State, 573 So.2d 813 (Fla. 1991), controls. NOTES [1] We have jurisdiction pursuant to article V, section 3(b)(3) of the Florida Constitution. [2] Section 775.087(1)(b), Florida Statutes (1987), provides in relevant part: 775.087 Possession or use of weapon; aggravated battery; felony reclassification; minimum sentence....

...CALLAWAY, 658 So.2d 983 (Fla.1995), IS FLORIDA RULE OF CRIMINAL PROCEDURE 3.850 RATHER THAN FLORIDA RULE OF CRIMINAL PROCEDURE 3.800(a) THE APPROPRIATE POSTCONVICTION PROCEDURAL MECHANISM FOR CONTESTING A THREE-YEAR MINIMUM MANDATORY SENTENCE IMPOSED PURSUANT TO SECTION 775.087(2), FLORIDA STATUTES, ON THE BASIS THAT A FIREARM WAS NOT POSSESSED DURING THE COMMISSION OF ONE OF THE STATUTORILY DESIGNATED FELONIES? Mancino, 689 So.2d at 1239....

...We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. Joseph Sal Mancino pled no contest in 1984 to armed burglary. Under the terms of the plea agreement, he was sentenced to four years with a three-year minimum mandatory for possession of a firearm. § 775.087(2), Fla....

...proper grounds for sentence enhancement. FACTS AND PROCEDURAL HISTORY Ricky Bradley was charged by information with robbery with a firearm in violation of sections 812.13(1) and (2)(a), Florida Statutes (2002). See Bradley, 971 So.2d at 958. Citing section 775.087(2), Florida Statutes (2002), the information alleged that while committing the robbery Bradley was in possession of and carried a firearm....

...The plea agreement called for a twenty-year mandatory minimum prison sentence that resulted from his discharge of a fire-arm *1169 during the robbery. Prior to entry of his plea, Bradley's counsel stated on the record that Bradley was subject to the twenty-year mandatory minimum term under section 775.087(2), Florida Statutes (2002)....

...Although Bradley did not appeal his conviction and sentence, Bradley did subsequently file a motion to correct sentence pursuant to Florida Rule of Criminal Procedure 3.800. See Bradley, 971 So.2d at 958. Bradley argued that his twenty-year mandatory minimum sentence pursuant to section 775.087(2), Florida Statutes (2002), was illegal because the information charging him with robbery did not allege that he discharged a firearm during the commission of the robbery....

...certified conflict with the Fourth District Court of Appeal on the issue of whether a defendant's nolo contendere plea constitutes a waiver of a defective charging document that fails to allege the proper grounds for sentence enhancement pursuant to section 775.087(2), Florida Statutes....

...ANALYSIS The District Courts The Florida district courts disagree about whether a defendant's nolo contendere plea may constitute a waiver of a defective charging document that fails to allege the proper grounds for sentence enhancement pursuant to section 775.087(2), Florida Statutes. In Jackson, the defendant pled no contest to eight counts, one of which was robbery with a deadly weapon, a firearm. The defendant claimed that his plea to that felony was improperly reclassified under section 775.087(2)(a)3, Florida Statutes (1999), because the information did not allege that he "discharged" a firearm or inflicted death or great bodily harm. See 852 So.2d at 942-44. The information only charged that the defendant "carried" a firearm. See id. at 944. The Fourth District concluded that an allegation of "carrying" a firearm cannot sustain a sentence enhancement under section 775.087(2)(a)3; therefore, the defendant's sentence could not stand....

...ent with twenty-year mandatory minimum terms for discharging a firearm. See id. at 213. The defendant contended that his twenty-year mandatory minimum sentence was illegal because the information did not charge him with "discharging" a firearm under section 775.087(2)(a)2, Florida Statutes (2002). The information charged the defendant with "possession" of a firearm, which carried a mandatory minimum term of only ten years' imprisonment under section 775.087(2)(a)1....

...firearm he could not be sentenced for discharging a firearm. See id. at 214 (citing Jackson, 852 So.2d at 944; Gibbs v. State, 623 So.2d 551, 555 (Fla.4th DCA 1993)). The district court concluded that the grounds for enhancement of a sentence under section 775.087(2) must be charged in the information....

...e element. See 971 So.2d at 960. The district court reasoned that even though the information failed to charge the discharge of a firearm element, the record demonstrates that Bradley was specifically advised of what offense he was pleading to under section 775.087(2) and that he was exposing himself to a twenty-year mandatory minimum sentence required for discharge of a firearm....

...rgue that he was not aware of his plea agreement terms. See Bradley, 971 So.2d at 961. This Case The Fifth District in Bradley affirmed the trial court's denial of relief on Bradley's claim that his twenty-year mandatory minimum sentence pursuant to section 775.087(2) was illegal because the information charging him with robbery did not allege that he discharged a firearm during the commission of the robbery....

...temporarily deprive [victim] or any other person not the defendant(s) of the property, and in the course of committing the robbery RICKY BRADLEY was in possession of and carried a firearm, contrary to Florida Statutes 812.13(1) and *1171 (2)(a) and 775.087(2). (1DEG FEL, PBL) (Emphasis added.) Where a firearm is possessed or used during the commission of certain enumerated crimes, section 775.087(2)(a), Florida Statutes, often referred to as the 10/20/Life statute, requires the imposition of a mandatory minimum sentence. See § 775.087(2)(a)1-3, Fla. Stat. (2007). Bradley was sentenced pursuant to section 775.087(2)(a)2, Florida Statutes (2002), which provides: Any person who is convicted of a felony or an attempt to commit a felony listed in sub-subparagraphs (a)1.a.-q., regardless of whether the use of a weapon is an element of the felony, a...

...parently a semi-automatic weapon. The trial court ruled that the special finding did not preclude sentencing as a principal for carjacking with a firearm and robbery with a firearm, but did preclude imposition of a minimum mandatory term pursuant to section 775.087(3), Florida Statutes, because that statute required Lopez to personally possess a firearm....

...during the commission or attempt to commit a crime will result in additional sentence points ... Twenty-five sentence points are assessed if the offender is convicted of committing or attempting to commit any felony other than those enumerated in subsection 775.087(3) while having in his or her possession a semiautomatic firearm ......

...The State acknowledges that the rule appears to be offender specific because it refers to a weapon in "his or her possession." In addition, the State agrees that normally no extra points would be assessed for possession of a firearm *285 because carjacking and robbery are two of the enumerated felonies in section 775.087(3), to which a mandatory minimum sentence is applied....

...See also § 921.0014(1)(a), Fla. Stat. (1997) (providing for assessment of extra points for use of a firearm if minimum mandatory not imposed due to use of firearm). Because no minimum mandatory sentence was imposed in this case, nor were Lopez's crimes enhanced pursuant to section 775.087(1), the State argues the imposition of additional points for the firearm would not constitute a double enhancement or violate double jeopardy. Therefore, the State argues that the trial court's order should be affirmed. We conclude that the assessment of points for possession of a semi-automatic should not have been applied, as carjacking and robbery are enumerated offenses in section 775.087(3) and therefore are excluded from application of the points....

...was affirmed without opinion in Lopez v. State, 743 So.2d 1102 (Fla. 5th DCA 1999). [2] It applies where, "during the commission of the offense, such person possessed a `firearm' or `destructive device' as those terms are defined in s. 790.001...." § 775.087(3), Fla....

...Second-degree murder is *922 a first-degree felony punishable by imprisonment for a term of years not exceeding life or as provided in sections 775.082, 775.083, and 775.084, Florida Statutes (2006). However, because Mr. Robinson used a firearm, the offense is reclassified as a life felony. § 775.087(1)(a)....

...State, 614 So.2d 34 (Fla. 5th DCA 1993). We have jurisdiction under article V, section 3(b)(4), Florida Constitution. Petitioner contends that our decision in Daniels v. State, 595 So.2d 952 (Fla. 1992), mandates that his three-year minimum mandatory sentence term under section 775.087(2), Florida Statutes (1993), must run concurrent with his habitual offender minimum mandatory sentences....

...criminal episode." Jackson, 641 So.2d at 966. The district court reasoned that because the legislature was addressing "separate harms" in enacting both the habitual felony offender statute and the firearm enhancement statute, it did not intend for "section 775.087(2) to have no meaningful effect in the context of a criminal episode for which a habitual offender minimum mandatory sentence is imposed." Id....

...In Palmer, the defendant was charged with committing thirteen counts of armed robbery at the same time and place. He was sentenced to seventy-five years on each armed robbery count. In addition, the court sentenced him to three years minimum mandatory on each count of armed robbery. [1] On appeal, the State argued that when section 775.087(2), [2] Florida Statutes (1981), and section 775.021(4), [3] Florida Statutes (1981), were read together, they permitted the stacking of consecutive mandatory three-year minimum sentences. We disagreed and held that there was no express authority in section 775.087(2) to deny a "defendant eligibility for parole for a period greater than three calendar years." Palmer, 438 So.2d at 3. However, we made it clear that our holding in Palmer did not mean that we ... prohibit the imposition of multiple concurrent three-year minimum mandatory sentences upon conviction of separate offenses included under subsection *1062 775.087(2), nor do we prohibit consecutive mandatory minimum sentences for offenses arising from separate incidents occurring at separate times and places....

...in Palmer, Daniels, Hale, and Brooks, prohibiting consecutive enhancement sentences arising *1063 out of a single criminal episode, and the reasoning thereof, are equally applicable to Jackson's sentence. As we noted in Daniels, possession of a gun, section 775.087, is an enhancement statute applying to the punishment prescribed by statute for the underlying offense....

...repeat violent offenders while the second addressed the problem of firearm possession in connection with commission of certain enumerated offenses. The language of these separate enhancement statutes gives no suggestion that the legislature intended section 775.087(2) to have no meaningful effect in the context of a criminal episode for which a habitual offender minimum mandatory sentence is imposed....

...attempt to commit the aforementioned crimes; ... and who had in his possession a "firearm," as defined in s. 790.001(6), or "destructive device," as defined in s. 790.001(4), shall be sentenced to a minimum term of imprisonment of 3 calendar years. § 775.087(2)(a), Fla....

...(1993). [5] Mandatory minimum terms for habitual violent felony offenders run either five, ten, or fifteen years, depending on the degree of the crime. § 775.084, Fla. Stat. (1993). [6] Mandatory minimum terms under the firearms statute run three years. § 775.087, Fla....

...State, 410 So.2d 944 *1100 (Fla. 1st DCA 1982); Williams v. State, 358 So.2d 187 (Fla. 4th DCA 1978). [3] Next, the state argues that even if the primary offense (aggravated battery) could not be reclassified under the habitual offender law, it could be so reclassified under Section 775.087(1), Florida Statutes (1983) [4] because of the defendant's use of a weapon. Such argument is, of course, without merit inasmuch as Section 775.087(1), by its own explicit terms, has no application to offenses in which the use of a weapon is already an essential element....

...by the Florida Supreme Court. The portion of the Comment relied upon by the state is as follows: The legislature has also provided that enhanced penalties may be imposed under specific circumstances (§ 775.084, Fla. Stat. (1981), habitual offender, § 775.087, Fla....

...But such reasons would still have to be set forth in a written statement by the court as required in Rule 3.701 d.11 notwithstanding the fact that the findings of fact required by the habitual offender law may be either in writing or reported in the transcript of the sentencing hearing. See Eutsey at p. 226. [4] Section 775.087(1) provides in part: (1) Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such felony the defen...

...State, 385 So.2d 1356 (Fla.1980). [4] By order dated October 8, 2004, this Court recognized that Braxton's "`Initial Brief on Jurisdiction' with attachments has been treated as a motion for reinstatement." [5] More specifically, Braxton claims that the trial court invalidated section 775.087, Florida Statutes (1993), by not convicting him under it....

...years for burglary with assault and fifteen years for dealing in stolen property. Braxton appealed this sentence on the grounds that the facts at trial clearly established that he should have been convicted of burglary with a firearm, a violation of section 775.087, Florida Statutes. In fact, the first information filed in his case charged him with violating both sections 775.087 and 810.02, Florida Statutes. More than a month before trial, the State amended the information by removing all references to the use of the firearm and to a violation of section 775.087. Braxton alleges that it was improper for the trial court to allow the amendment of the information or limit the jury instructions to the crimes charged in the information or both. He claims that if he had been convicted under section 775.087, Florida Statutes, he would have been found guilty of a life felony, instead of a first-degree felony and would, therefore, not have been eligible for status as a habitual felony offender....

...Sentence" in the trial court. On March 31, 2004, the trial court issued an order denying this motion. It found that Braxton's sentence as a habitual felony offender was proper, given the fact that he had neither been charged with nor sentenced under section 775.087, Florida Statutes....

...ted against law enforcement officers and enhancement statutes such as the habitual offender statute, "which cut across some or all criminal statutes." State v. Brown, 476 So.2d 660, 662 (Fla. 1985) (holding that a penalty could not be enhanced under section 775.087(1) for a crime in which the use of a deadly weapon was an essential element, because that statute by its express terms did not apply to such felonies)....

...779 So.2d 271 (Fla.2000). Contrary to the petitioner's contention, the First, Second, Fourth and Fifth Districts have held that it is proper, and not proscribed by double jeopardy principles, to sentence a defendant convicted of a crime pursuant to section 775.087 to an enhanced sentence under a recidivist sentencing scheme for which (considering the section 775.087 conviction) the defendant qualifies....

...Whitehead, 472 So.2d 730, 732 (Fla.1985), is instructive in this regard. In Whitehead, the defendant was convicted of second-degree murder with a firearm. The issue addressed by this Court was whether it constituted an improper double enhancement to apply both section 775.087(1) (providing that, when a person commits a felony with a firearm, the sentence is to be reclassified one category higher) and section 775.087(2) (providing, at that time, for a minimum mandatory sentence of three years for the possession of a firearm during the commission of the enumerated felonies in the statute)....

...n with the victim's death alleged that the defendant had used a weapon, the pavement/asphalt, to inflict trauma to the victim's head. The jury returned a verdict finding defendant guilty of manslaughter with a weapon. Reclassification was sought via section 775.087(1), Florida Statutes (1991), regarding the "use" of a weapon and the trial court adjudicated defendant guilty of a first-degree felony. Appeal was filed in the Fifth District, and the defendant's conviction was upheld. On motion for rehearing, the district court, en banc, reversed the earlier opinion and certified the issue of the meaning of the term "weapon" as used in section 775.087(1), as one of great public *360 importance....

...at 182 (footnote omitted). We agree with the court in further stating: Here, the underlying fallacy of the state's argument is that it misconceives the legislative intent underlying the reclassification statute. The obvious legislative intent reflected by section 775.087 is to provide harsher punishment for, and hopefully deter, those persons who use instruments commonly recognized as having the purpose to inflict death and serious bodily injury upon other persons....

...3. A means used to defend against or defeat another." A paved surface is not commonly understood to be an instrument for combat against another person. We specifically point out that if pavement or a hard surface is to be considered a weapon under section 775.087, then the legislature should amend the statute so that pavement and similar passive objects are defined to come within its coverage....

consecutive mandatory minimum sentences under section 775.087, Florida Statutes, the 10-20-Life statute,

...The jury found appellant guilty of aggravated assault with a deadly weapon and also found that he discharged the firearm during the offense. The trial court sentenced appellant to a mandatory minimum term of twenty years imprisonment for the aggravated assault based on the discharge of the firearm, pursuant to 775.087(2)(a)(2), Florida Statutes (1999)....

...esponded "yes" to the question, "If you find the Defendant Guilty of Aggravated Assault with a Deadly Weapon and you find that the Deadly Weapon was a firearm, did the Defendant Discharge the Firearm?" The trial court sentenced appellant pursuant to section 775.087(2)(a)(2), Florida Statutes (1999), which provides: *1183 Any person who is convicted of a felony or an attempt to commit a felony listed in sub-subparagraphs (a)1.a.-q., regardless of whether the use of a weapon is an element of the felony, and during the course of the commission of the felony such person discharged a `firearm' or `destructive device' ... shall be sentenced to a minimum term of imprisonment of 20 years. § 775.087(2)(a)(2), Fla. Stat. (1999). Aggravated assault is one of the enumerated felonies included in § 775.087(2)(a)(1)(f), Florida Statutes (1999)....

...an occupied building (count II). By special verdict, the jury found that the defendant used a firearm in the commission of the attempted second-degree murder. He was sentenced on each count to a mandatory minimum sentence of three years pursuant to section 775.087(2), Florida Statutes (1997)....

...m sentence for his conviction of attempted second-degree murder constituted fundamental error and reversed and remanded the case for re-sentencing: We have held that `[i]n order for a three year mandatory minimum to apply on a conviction pursuant to section 775.087(2), the state must allege in the information and prove at trial that the defendant possessed a `firearm' or `destructive device' during the commission of the crime.' No such firearm allegation or reference to section 775.087(2) was made in the information to put appellant on notice that he was being charged in Count I [attempted first-degree murder] `with the use of a firearm' and faced potential imposition of a three-year mandatory minimum sentence....

...ice that he was being charged with discharging a firearm during the course of the aggravated assault. The term "used" a firearm does not necessarily mean that a person "discharged" a firearm because a person may use a firearm without discharging it. Section 775.087(2)(a)(2) applies when a person discharges the firearm or destructive device....

...because the information does not contain an express allegation that he "actually possessed" a firearm during the commission of the aggravated battery, the trial court cannot impose a three-year mandatory minimum sentence for possession of a firearm. Section 775.087(2)(a)(1), Florida Statutes (1999), provides in part "that a person who is convicted for aggravated assault ......

...e specific question of whether an information that contains an allegation that a person "used" a firearm during the commission of an aggravated assault is sufficient to support the imposition of a three-year mandatory minimum sentence as provided in 775.087(2)(a)(1)....

...In Bryant and Gibbs, neither information contained any allegation as to whether the subject offense was committed with a firearm. In both cases, this court held that "[i]n order for a three year mandatory minimum to apply on a conviction pursuant to section 775.087(2), the state must allege in the information and prove at trial that the defendant possessed a `firearm' or `destructive device' during the commission of the crime....

...ns an allegation that the appellant "used a deadly weapon, to wit: a firearm," during the commission of the aggravated assault. We find support for this conclusion in Bryant because this Court stated "... [n]o such firearm allegation or reference to section 775.087(2) was made in the information to put appellant on notice that he was being charged in Count I `with use of a firearm' and faced potential imposition of a three year mandatory minimum sentence." (Emphasis added.) Bryant, 744 So.2d at 1226....

...For the reasons discussed, we hold that the state's allegation that appellant "used a deadly weapon, to wit: a firearm" was sufficient to place him on notice that he was subject to a three year mandatory minimum sentence for possession of a firearm, pursuant to section 775.087(2)(a)(1)....

...3d DCA 1993). [1] Accordingly, we affirm appellant's conviction. We reverse the trial court's imposition of a twenty year mandatory minimum sentence for discharging a firearm and we remand this cause to the trial court to re-sentence appellant as provided in section 775.087(2)(a)(1), Florida Statutes (1999)....

attempt to commit any offense listed in Florida Statute 775.087(2)(a) 1, JAMES HER-ARD and/or CALVIN LEE

...Statutes (1999), (count IV). His probation was revoked and he was sentenced to 141 months under the guidelines on the cocaine charges. Since the substantive firearm offenses were subject to the sentencing provisions of the so called 10-20-life law, section 775.087(2)(a), Florida Statutes (2000), he received terms of imprisonment of five years and 141 months under that statute....

...State, 587 So.2d 1145 (Fla.1991); State v. Brown, 633 So.2d 1059 (Fla.1994); Washington v. State, 597 So.2d 840 (Fla. 3d DCA 1992). Hence, the conviction and sentence as to Count IV are vacated. II. Turning to the cross-appeal, we first agree with the state that the statute, section 775.087(2)(d), Florida Statutes (2000), [1] which unequivocally requires that the substantive sentences be imposed "consecutively to any other term of imprisonment imposed for any other felony offense" requires the sentences on the remaining charges be served consecutively to those in the cocaine case....

...Merely on the face of the statute, the reference to "any other " felony refers, as in this case, only to another separate crime, rather than those involved in a single prosecution. [2] In the comments to its Final Analysis of CS/ CS/HB 113 (SB 194), which became Chapter 99-12, Laws of Florida, and subsection 775.087(2), the Committee on Crime and Punishment in the House of Representatives so stated: Consecutive Sentences The bill provides that the Legislature intends for the new minimum mandatory sentences to be imposed for each qualifying count,...

...on DCF's letter and not on any prior adjudication of competency by the court. Without such an adjudication, it was error to proceed to sentencing. Appellant also challenges the propriety of a three-year minimum mandatory sentence imposed pursuant to section 775.087(2)(a)1., Florida Statutes (2002), for possession of a firearm during the commission of the underlying offense. We conclude that an ambiguity in that statute requires that we resolve this issue in Appellant's favor under lenity principles embodied in section 775.021(1), Florida Statutes (2002). Section 775.087(2)(a)1., Florida Statutes, provides in pertinent part as follows: Any person who is convicted of a felony, regardless of whether the use of a weapon is an element of the felony, and the conviction was for: a....

...We do not think either construction is clearly manifested and, therefore, find the statute to be ambiguous in this regard. In concluding that an ambiguity exists, we start by noting that the word "possession," in the context of the prior version of section 775.087, was determined long ago to be ambiguous itself....

...person. Possession may also be proven by demonstrating that the defendant had the firearm within immediate physical reach with ready access with the intent to use the firearm during the commission of the offense, if proven beyond a reasonable doubt. § 775.087(4), Fla....

...GRIFFIN, J., concurring specially. A word in support of the trial judge. He saw that the legislature had purposefully included "possession of a firearm by a felon" as subsection (r) in the list of offenses for which a ten-year minimum mandatory is required in section 775.087(2)(a)1, Florida Statutes....

...ied time-honored and battle-tested principles of statutory construction to conclude that the difference between "actually possessed" and "possessed" had significance. But he was wrong. *223 In my time, I have seen some odd statute drafting, but what section 775.087 does with "possession" of a firearm, in general, and "possession of a firearm by a felon", in particular, should get a prize....

...for which a ten-year minimum mandatory is required. The legislative history makes this clear. [1] In order to figure out what the legislature had in mind to qualify as "possession" for purposes of the three-year minimum mandatory, subsection (4) of section 775.087 is controlling: For purposes of imposition of minimum mandatory sentencing provisions of this section, with respect to a firearm, the term "possession" is defined as carrying it on the person. Possession may also be proven by demonstrating that the defendant had the firearm within immediate physical reach with ready access with the intent to use the firearm during the commission of the offense, if proven beyond a reasonable doubt. § 775.087(4), Fla....

...ented on Palm Beach County grand juries; and 3) young adults (ages 18 to 29) have been similarly underrepresented. Appellant's second point is whether the trial court erred in imposing a mandatory minimum sentence where the indictment failed to cite section 775.087(2), Florida Statutes (1977), [2] and failed to specifically allege that the weapon used was a firearm....

...Under Florida law, however, there is no requirement that a defendant be advised of any mandatory minimum sentence. Knowles v. State, 356 So.2d 885 (Fla.3d DCA 1978); Gonzalez v. State, 300 So.2d 691 (Fla.2d DCA 1974). See also Scott v. State, 369 So.2d 330 (Fla. 1979) (upholding the constitutionality of section 775.087(2) in the face of an allegation that the statute does not put a defendant on notice that conviction would subject such defendant to that section's provisions). The indictment charged Bryant with killing Ossie Polk "by shooting him with a revolver." Adopting the reasoning of the First and Third District Courts of Appeal, [6] we hold that a revolver is a firearm within the meaning of sections 775.087(2) and 790.001(6)....

...* * * * * * (3) In the selection of jury lists only such persons as the selecting officers know, or have reason to believe, are law-abiding citizens of approved integrity, good character, sound judgment and intelligence, and who are not physically or mentally infirm, shall be selected for jury duty. * * * * * * [2] § 775.087(2) reads as follows: (2) Any person who is convicted of: (a) Any murder, sexual battery, robbery, burglary, arson, aggravated assault, aggravated battery, kidnapping, escape, breaking and entering with intent to commit a felony, or aircraf...

...g or striking said person, against said person's will, or by intentionally causing bodily harm to said person, and in committing said battery did actually possess and discharge a deadly weapon, to-wit: a firearm, contrary to Florida Statute 784.045; 775.087.......

...s aggravated battery); aggravated battery causing great bodily harm is a second-degree felony ...; and aggravated battery causing great bodily harm and involving the use of a deadly weapon is a first-degree felony (section 784.045(1)(a), enhanced by section 775.087(1) by virtue of the use of a weapon or firearm)....

...earm without discharging it, see Altieri, 835 So.2d at 1183, but a person who discharges a firearm must necessarily be said to have used it. Mr. Davis also contends, correctly, that his aggravated battery conviction could not be enhanced pursuant to section 775.087(1), which provides for reclassification of a crime from a second-degree to a first-degree felony if the defendant uses a firearm during its commission, unless "the use of a weapon or firearm is an essential element" of the crime....

...y charge. See Gonzalez v. State, 585 So.2d 932, 933 (Fla.1991) ("We find that this issue is controlled by Lareau v. State, 573 So.2d 813 (Fla.1991), where we held that although aggravated battery causing great bodily harm can be enhanced pursuant to section 775.087(1) because the use of a weapon is not necessary to cause great bodily harm, the crime of aggravated battery with the use of a deadly weapon is not subject to reclassification because the use of a weapon is an essential element of the crime."); Griffin v....

...to constitute the offense of aggravated battery."). It is apparent that the prosecution charged Mr. Davis with "actually possessing and discharging a firearm" rather than simply with "using a deadly weapon" because, in addition to reclassification, section 775.087 provides for sentencing enhancements when a firearm is possessed or used during the commission of certain enumerated crimes. However, the minimum terms mandated by the "10-20-Life" statute, section 775.087(2), cannot be legally imposed unless the statutory elements are precisely charged in the information....

...ice that he was being charged with discharging a firearm during the course of the aggravated assault. The term "used" a firearm does not necessarily mean that a person "discharged" a firearm because a person may use a firearm without discharging it. Section 775.087(2)(a)(2) applies when a person discharges the firearm or destructive device. Here, the trial court apparently attempted to sentence Mr. Davis to a minimum mandatory term of twenty-five years to life in prison under section 775.087(2)(a)(3)....

...nd "as the result of the discharge, death or great bodily harm was inflicted upon any person." Although the jury found Mr. Davis guilty of "Aggravated Battery (discharging a firearm causing great bodily harm)," imposition of the mandatory term under section 775.087(2)(a)(3) is illegal in this case because *1061 the information did not charge death or great bodily harm....

...Davis's position is that on remand, the trial court may not impose a sentence exceeding fifteen years' imprisonment, the statutory maximum for a second-degree felony. As the State argues, however, another section of the 10-20-Life statute applies to Mr. Davis. Section 775.087(2)(a)(2) requires that any person who is convicted of an aggravated battery, "regardless of whether the use of a weapon is an essential element of the felony, and during the course of the commission of the felony such person discharged a `firearm' ......

...shall be sentenced to a minimum term of 20 years." If this minimum mandatory term is greater than the maximum penalty under the Criminal Punishment Code or sentences authorized by other sections of chapter 775, "then the mandatory minimum sentence must be imposed." § 775.087(2)(c)....

...ury does not determine the specific quantity of cocaine involved. See id.; Rickman v. State, 642 So.2d 846, 846 (Fla. 4th DCA 1994). In resolving this issue, the district court found it instructive to refer to this Court's line of cases interpreting section 775.087, Florida Statutes, dealing with the reclassification and minimum sentence imposition for crimes involving the possession or use of a weapon or firearm. [4] Our cases interpreting section 775.087 have required a specific jury finding that a defendant used a firearm or weapon in the commission of an offense before a trial court may enhance the defendant's sentence or apply a mandatory minimum sentence for the defendant's use of a firearm or weapon in the commission of the offense....

...sufficient. This conclusion is misguided. Overfelt was a case where the trial judge reclassified the defendant's conviction at sentencing from attempted third-degree murder to a felony of the second degree, pursuant to the enhancement provisions of section 775.087(1), Florida Statutes (1983), even though at trial the jury made no finding as to whether the defendant possessed a firearm....

...[2] The parties consented to the crossing out of the line in the verdict form and the trial judge's modified instructions. [3] The record does not reflect why the judge who presided over the trial had been replaced by a substitute judge to accept the jury's verdict. [4] Section 775.087(1), Florida Statutes (1983), provides: Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such fe...

...Leath alleged that he was convicted of armed robbery with a firearm in several cases. He claimed that because he was *957 not in actual possession of a firearm in trial court case numbers 94-4453, 94-5647, and 95-0242, the imposition of three-year minimum mandatory sentences for possession of a firearm pursuant to section 775.087(2), Florida Statutes (1993), was illegal in those cases....

...sion; rather, the information alleged that the firearm was in the possession of Leath's codefendant. It is this argument which requires reversal. In order for the three-year minimum mandatory sentence for possession of a firearm to apply pursuant to section 775.087(2), Florida Statutes (1993), the State must allege in the information that the defendant possessed a firearm....

...District Court of Appeal of Florida, Second District. October 20, 1993. PER CURIAM. Carl Poiteer appeals the summary denial of his motion to correct sentence. We reverse. Poiteer is serving a fifteen-year sentence for armed robbery. Three years of this sentence represents mandatory time required by section 775.087(2), Florida Statutes (1989)....

...State, 389 So.2d 652 (Fla. 1st DCA 1980). However, an unlawful sentence may be contested at any time. Although a defendant may be convicted of robbery with a firearm based on vicarious or constructive possession of the gun ( e.g., if it is carried by an accomplice), section 775.087(2) requires actual physical possession before a minimum mandatory term may be imposed for possession of a firearm....

...In Bell the district court stated it could not "conclusively determine ... whether Bell is now alleging that he did not carry a firearm during the robbery." 589 So.2d at 1376. In our view, the movant must specifically allege that he has been prejudiced by application of section 775.087(2)....

...Because the trial court did not reach the merits of the motion, the appellate record lacks the necessary exhibits for us to determine if Poiteer's claim can be refuted. After remand, therefore, it will be incumbent upon the circuit court to determine whether section 775.087(2) was properly invoked in his case....

...[2] Perhaps the most common occasion for improper imposition of a mandatory sentence occurs when more than one person engages in an armed felony offense, but where only one actually carries the firearm. In this instance the "triggerman" faces a minimum mandatory sentence, but it is error to apply section 775.087(2) to the other(s)....

to mandatory minimum sentencing pursuant to Section 775.087(2), Florida Statutes (2010).1 The State’s

...utes, a felony of the second degree and is punishable by a term not exceeding 15 years. See section 775.082(3)(c), Florida Statutes. Apparently, the trial court reclassified the conspiracy count to a first degree felony by applying the provisions of section 775.087(1) because of appellant's use of a firearm during commission of the armed robbery that was the object of the earlier conspiracy....

...f the first degree. Presumably, in coming to the agreement to commit a crime, which agreement is the gravamen of criminal conspiracy, any one or all of the conspirators may be armed thereby subjecting himself/themselves to the enhancement feature of section 775.087(1). We hold only that under the facts of this case, section 775.087(1) cannot be used to reclassify a second degree felony to one of the first degree. The trial court likewise erred in imposing a three-year mandatory minimum *1130 period on the conspiracy count. As appellee concedes, conspiracy to commit robbery while armed with a firearm is not one of the offenses catalogued in section 775.087(2) to which three year mandatory minimum sentences apply....

...ed and convicted, in determining whether to impose a mandatory minimum sentence. Appellee cites no case law to support such a contention and we are aware of none. Consequently, we hold that the so-called "mandatory minimum" sentences provided for in section 775.087(2), Florida Statutes can only be applied to the offenses specifically enumerated therein....

...matters which are legally or factually not relevant to the issues presented to the court. Limiting the consideration of the conspiracy charge to the "facts of this case" and opining on the possibility of enhancing conspiracy under the provisions of section 775.087(1), Florida Statutes, are misleading and result in suggesting a position of this court on a legal issue not presented and with which I would not agree....

assault involving the discharge of a firearm. See § 775.087(2)(a)2, Fla. Stat.1 Absent a plea to reduced charges

...Keona Murray, who was convicted of one count of armed burglary, one count of armed robbery, and one count of armed carjacking, appeals the armed robbery conviction and the armed carjacking conviction. Murray also appeals the three consecutive ten-year minimum mandatory sentences imposed for the offenses pursuant to section 775.087, Florida Statutes (2001) — commonly known as the 10/20/life statute....

...State, 595 So.2d 952 (Fla.1992); Palmer v. State, 438 So.2d 1 (Fla.1983). See generally § 775.021(4)(a), Fla. Stat. (2001). In Sousa v. State, 868 So.2d 538 (Fla. 2d DCA 2003), review granted, 870 So.2d 824 (Fla.2004), this court applied this principle to sentences imposed pursuant to section 775.087, Florida Statutes (1999)....

...es punishable under the 10/20/life statute that arose from a single criminal episode. [1] Sousa, 868 So.2d at 539; see also Elozar v. State, 872 So.2d 934 (Fla. 5th DCA 2004). Accordingly, Murray could not be subjected to consecutive sentences under section 775.087 for any offense that arose from a single episode. But see Arutyunyan v. State, 863 So.2d 410, 412 (Fla. 4th DCA 2003) (holding that where defendant "was being sentenced for felonies tried within a single prosecution" under section 775.087, the trial court was "free to choose" whether to run sentences consecutively or concurrently)....

...each offense subject to punishment under that statute for crimes "involved in a single prosecution." In discussing Mondesir, we referred to the Third District's conclusion "that when sentencing multiple offenses from the same criminal episode under section 775.087, the sentences should run concurrently." Sousa, 868 So.2d at 540. In doing so, we extrapolated from the statement in Mondesir that section 775.087 does not require consecutive sentences for offenses punishable under that section for crimes "involved in a single prosecution" to conclude that the statute does not permit consecutive sentences for offenses punishable under section 775.087 when they arise from a single criminal episode.

...Gayman does not support our conclusion in Oliveira that a double enhancement is prohibited, and we have found no other authority which does support it. In State v. Whitehead, 472 So.2d 730, 732 (Fla.1985), the defendant was convicted of second degree murder with a firearm. Section 775.087(1) provided that when a person commits a felony with a firearm the sentence is to be reclassified one category higher. Section 775.087(2) provided that people who commit specified crimes with a firearm are required to serve three years before becoming eligible for parole....

...This issue was decided adversely to appellant's position in Brown v. State, 460 So.2d 546 (Fla. 1st DCA 1984), approved, 475 So.2d 1243 (Fla.1985), and State v. Whitehead, 472 So.2d 730 (Fla.1985). In Whitehead, the supreme court concluded subsections (1) and (2) of section 775.087 are not mutually exclusive....

...[3] Pursuant to agreement of counsel, the trial court instructed the jury on manslaughter by intentional act, and that if the jury concluded appellant did not act intentionally, it could not find her guilty of the lesser included offense of manslaughter. [4] See § 775.087(1)(a), Fla.Stat. (2001). A life felony is punishable by a term of imprisonment for life or a term not exceeding 40 years. [5] See § 775.087(2)(a)(3), Fla.Stat. (2001). This provision authorizes a 25-year minimum mandatory sentence for the use of a firearm in the commission of any of the felonies enumerated in section 775.087(2)(a)(1), which includes murder.

...On March 6, 2002, a jury convicted Whitehead of aggravated battery with a deadly weapon, and the jury specifically found that Whitehead used and discharged a firearm. The trial court imposed a minimum mandatory sentence of twenty years *140 in prison pursuant to section 775.087(2)(a)(2), Florida Statutes (1999)....

...The amended information attached to his rule 3.800(a) motion indicates that the information did not charge that Whitehead discharged a firearm. The information only charged the use of a firearm, but the court enhanced Whitehead's sentence for discharging a firearm under section 775.087(2)(a)(2)....

...See Rogers v. State, 875 So.2d 769 (Fla. 2d DCA 2004); Altieri v. State, 835 So.2d 1181 (Fla. 4th DCA 2002). A firearm may be used without being discharged; therefore, an allegation of "use" will not sustain an enhancement for discharging a firearm under 775.087(2)(a)(2)....

...Accordingly, we reverse and remand for the trial court to resentence Whitehead under the Criminal Punishment Code. The trial court shall strike the twenty-year minimum mandatory sentence, but it shall impose the ten-year minimum mandatory sentence for use of a firearm pursuant to section 775.087(2)(a)(1)....

...25—Life." Jackson was sentenced to Life on Count VI with a minimum mandatory sentence of 25 years. Jackson's Motion to Correct Sentencing Error pending appeal was denied and this matter is now before this court. Jackson contends the crime to which he pled no contest was improperly reclassified under section 775.087(2)(a)3, Florida Statutes, even though all of the essential elements enunciated in that statute had not been pled in the information. We agree. *944 Section 775.087(2)(a), Florida Statutes, the "10-20-Life" statute, provides for the enhancement of a crime where a firearm is possessed or used during the commission of certain enumerated crimes. In order to reclassify a crime under 10-20-Life, the grounds for enhancement must be charged in the information. See Gibbs v. State, 623 So.2d 551, 554-55 (Fla. 4th DCA 1993). Here, Jackson was sentenced pursuant to section 775.087(2)(a)3, Florida Statutes (1999), which provides: Any person who is convicted of a felony or an attempt to commit a felony listed in sub-subparagraph(a)1.a.-q., regardless of whether the use of a weapon is an element of the felony, and...

...he commission of said felony, or of inflicting death or great bodily harm as the result of such. Rather, the information merely charged that Jackson had "carried" a firearm. Although an allegation of "carrying" a firearm can sustain a sentence under section 775.087(2)(a)1, it cannot sustain a sentence under section 775.087(2)(a)3. Since Jackson was not charged with "discharging" a firearm or causing great bodily harm or death as the result of such, his sentence under section 775.087(2)(a)3 cannot stand....

...The fact that Jackson and his counsel were under the mistaken belief that he was pleading to a charge that carried a 25 year mandatory minimum sentence does not transform the illegality of that sentence, where a crime with only a 10 year mandatory minimum sentence [775.087(2)(a)1.] had been pled in the information, and pled out to by Jackson....

...Yet, at no time did the State move to amend the information to add the missing essential elements of "discharging" a firearm resulting in great bodily harm or death. Jackson was charged only with, and pled no contest to, robbery while "carrying" a firearm, grounds for sentencing pursuant to section 775.087(2)(a)1. As such, we reverse Jackson's conviction under section 775.087(2)(a)3 on Count VI, and remand with instructions for the trial court to re-sentence him on that count pursuant to section 775.087(2)(a)1....

...The victim was shot a total of eight times and was rendered a paraplegic. The State charged Knight with attempted first-degree murder with a firearm. At trial, the jury found him guilty of the lesser offense of attempted second-degree murder. The verdict form did not reference a firearm; nevertheless, pursuant to section 775.087(1), Florida Statutes (1993), and based on the evidence that Knight used a firearm in the commission of the offense, the trial court enhanced the degree of the offense from a second-degree felony to a first-degree felony and sentenced Knight to thirty years in prison....

...Gen., West Palm Beach, for appellee. EN BANC PARIENTE, Judge. This is the second sentencing appeal for appellant, Stephan Lifred (defendant), and the second time he has attacked the imposition of consecutive three year mandatory minimum terms pursuant to section 775.087(2), Florida Statutes (Supp....

...ed battery with a firearm of a second victim, occurring during the course of an armed robbery of both victims, where a firearm has been discharged twice resulting in injury to two victims. We hold that the trial court possesses this discretion under section 775.087(2), and properly exercised its discretion under the circumstances of this case because the discharges of the firearm constituted separate and distinct acts against separate and distinct victims....

...We next consider the limitation on a trial court's authority to impose consecutive three year mandatory minimums for crimes involving use of a firearm. The supreme court, first discussing this issue in Palmer v. State, 438 So.2d 1 (Fla. 1983), declined to read section 775.021(4) in pari materia with section 775.087(2) [4] and thus, refused to construe section 775.021(4) as providing unlimited authority to impose consecutive mandatory minimums for multiple crimes within one criminal episode....

...The supreme court's decision must be analyzed in light of the unique facts in Palmer. The armed robbery occurred in a funeral home when the defendant brandished a pistol and ordered multiple mourners to throw their money and valuables on the floor. Although section 775.087(2) does not contain any explicit language restricting trial courts from imposing consecutive mandatory minimums for separate criminal offenses involving the use of a firearm, Justice McDonald, writing for a divided court, held the leg...

...[5] Id. *97 In his dissent, Justice Alderman disagreed that there was any evidence that the legislature intended to limit a trial court's discretion to impose consecutive mandatory minimums for crimes wherein separate sentences were proper pursuant to section 775.087(2): Had Palmer committed thirteen separate robberies at thirteen separate houses, there would be no question that he could receive thirteen separate, consecutive, three-year mandatory minimum sentences....

...Certainly a defendant who commits multiple crimes should be punished more severely than one who commits only one crime. The legislature did not intend that crime be "cheaper by the dozen." Id. 438 So.2d at 4. The supreme court in Thomas v. State, 487 So.2d 1043, 1044 (Fla. 1986), again interpreted section 775.087(2), distinguishing Palmer based on the presence in Thomas of "two separate and distinct criminal offenses involving two separate and distinct victims." We find Thomas, construing the precise statute at issue in this appeal, to control....

...ng from a robbery. While recognizing that Enmund involved section 775.082(1), Florida Statutes, which authorizes twenty-five year mandatory minimums for capital felonies, the supreme court concluded that the intent behind both section 775.082(1) and section 775.087(2) is to vest trial courts with broad discretion to impose mandatory minimums concurrently or consecutively for separate and distinct offenses involving multiple victims....

...ature of the crime and manner of commission. With each successive discharge of the firearm at each additional victim, the firearm is being used separately and distinctly, and in a different manner. We do not believe that the legislature, in enacting section 775.087(2), intended to restrict the sentence that a trial court may impose on a defendant such as Lifred to a mandatory minimum of three years for each victim he injured or attempted to kill, rather than two mandatory minimums of three years as ordered in this case. This analysis is consistent with the reasoning of Palmer, Thomas and Murray, which all address section 775.087(2)....

...(b) The intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity as set forth in subsection (1) to determine legislative intent... . (Emphasis added). [4] Section 775.087(2), Fla....

...atory minimums can be imposed for habitual violent offenders pursuant to section 775.084(4)(b), Florida Statutes (Supp. 1988). Daniels v. State, 595 So.2d 952 (Fla. 1992). Distinct from what the supreme court has termed enhancement statutes, such as section 775.087(2) and section 775.084(4)(b), are statutes where the minimum penalty for the crime is explicitly set forth by statute such as the 25 year mandatory minimum for capital felonies....

...Following a jury trial, he was found guilty on Count I of attempted second degree murder with a firearm and guilty as charged on Count II, shooting into an occupied dwelling. Appellant was sentenced to concurrent terms of 100.9 months in prison, with a three-year mandatory minimum sentence on each count, pursuant to section 775.087(2), Florida Statutes (1997)....

...The jury returned a guilty verdict on the lesser included charge of attempted second degree murder, and, by a special verdict, determined that appellant used a firearm in the commission of this offense. We have held that "[i]n order for a three year mandatory minimum to apply on `a conviction pursuant to section 775.087(2), the state must allege in the information and prove at trial that the defendant possessed a `firearm' or `destructive device' during the commission of the crime." Gibbs v. State, 623 So.2d 551, 555 (Fla. 4th DCA 1993); see also Peck v. State, 425 So.2d 664 (Fla. 2d DCA 1983). No such firearm allegation or reference to section 775.087(2) was made in the information to put appellant on notice that he was being charged in Count I "with the use of a firearm" and faced potential imposition of a three-year mandatory minimum sentence....

...a separate finding or by including a reference to a firearm when identifying the specific crime. See Tucker v. State, 726 So.2d 768, 772 (Fla.1999); State v. Hargrove, 694 So.2d 729, 730-31 (Fla.1997); State v. Tripp, 642 So.2d 728, 730 (Fla.1994). Section 775.087(2)(a)3....

...and, as a result of the discharge, death or great bodily harm was inflicted upon any person, the convicted person shall be sentenced to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison. § 775.087(2)(a)3., Fla....

...ied and fired a firearm in committing second degree murder. Id. at 842. Brazill next challenges the imposition of a minimum mandatory sentence of twenty-eight years for his conviction of second degree murder. He contends that the express language of section 775.087(2) does not permit the trial court to designate the entire sentence as a mandatory minimum, but only the first twenty-five years. Second degree murder is a felony in the first degree that carries a potential maximum sentence of life imprisonment. See §§ 782.04(2), 775.082(3)(b), Fla. Stat. (1999). Brazill's conviction under the enhancement statute, section 775.087(2)(a)3., *292 subjected him to the sentencing provisions of that section, which provide that the "convicted person shall be sentenced to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison." § 775.087(2)(a)3. A plain reading of section 775.087(2)(a)3....

...ible for the ground, or any paved surface, to be a weapon for reclassification purposes." The state contends that the trial court properly submitted the issue of whether the pavement constituted a weapon to the jury. This appeal requires analysis of section 775.087(1), Florida Statutes (1991), the reclassification statute....

...or bathtub, could not be a weapon within the statute's meaning. Here, the underlying fallacy of the state's argument is that it misconceives the legislative intent underlying the reclassification statute. The obvious legislative intent reflected by section 775.087 is to provide harsher punishment for, and hopefully deter, those persons who use instruments commonly recognized as having the purpose to inflict death and serious bodily injury upon other persons....

...y determination, that Houck committed an aggravated battery in the course of the commission of Carter's homicide, whether second degree murder or manslaughter. Aggravated battery, as well as the use of a weapon, is a basis for reclassification under section 775.087....

...Accordingly, we reverse the defendant's conviction for the first degree felony of manslaughter with a weapon and remand for resentencing for the second degree felony of manslaughter. Since the issue we have addressed in this opinion — the meaning of the word "weapon" as used in section 775.087(1), Florida Statutes (1991) — is one of first impression at the appellate level and one which may impact upon future cases and jury instructions, we certify it to the Florida Supreme Court as one of great public importance....

...ns who use instruments commonly recognized as having the purpose to inflict death and serious bodily injury upon other persons." Because I am unwilling to so limit the legislative policy, I must dissent from the question and, therefore, the opinion. Section 775.087(1) uses the terms "carry" and "use" in the disjunctive....

...is used to injure or kill another. And there is no basis for inferring that the legislature intended to preclude a brick or a 2" x 4" from being a weapon merely because they were *185 designed for the benign purpose of construction. [1] By enacting section 775.087, the legislature has recognized that felonies which can be committed without weapons become much more dangerous to the victims if weapons are involved and has provided that such felonies involving weapons carry more serious consequences....

...349, 111 A.2d 201, 202 (1955); also citing Standard Oil Co. v. Anderson, 212 U.S. 215, 220, 29 S.Ct. 252, 53 L.Ed. 480 (1909)). As Chief Judge Harris aptly points out in his dissent, the legislature's disjunctive use of the terms "carry" and "use" in the reclassification statute, section 775.087(1), Florida Statutes (1991), indicates a broader view of the term "weapon" than that taken by the majority....

...the right of a person to pave his driveway, but it might prevent a person from repeatedly banging his neighbor's head on the pavement for the purpose of either seriously injuring or killing the neighbor. GOSHORN and PETERSON, JJ., concur. NOTES [1] Section 775.087(1) states: Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such felony the defendant carries,...

...s "with a deadly weapon" but did not specify whether the attempted first-degree murder conviction was based on a theory of premeditated murder or felony murder. Upon Traylor's conviction of attempted first-degree murder, the trial court, pursuant to section 775.087(1), Florida Statutes (1987), [4] reclassified that crime and sentenced Traylor to life imprisonment....

...at 174 n. 2. On review in this Court, Traylor contends that the reclassification of his attempted first-degree murder conviction was a sentencing error because a conviction of attempted felony murder may not be reclassified and enhanced pursuant to section 775.087(1), Florida Statutes, when the use of a weapon is an essential element *1181 of the predicate felony....

...QUINCE, J., concurs in result only. NOTES [1] See § 794.011(3), Fla. Stat. (1987). [2] Section 782.04(1), Florida Statutes (1987), includes premeditated murder, section 782.04(1)(a)1., and felony murder, section 782.04(1)(a)2. [3] § 794.011(3), Fla. Stat. (1987). [4] Section 775.087(1) states in relevant part: Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such felony the de...

...Gen., Tallahassee, and William I. Munsey, Jr., Asst. Atty. Gen., Tampa, for appellee. PER CURIAM. Appellant, Jeffrey Lamar Franklin, challenges the trial court order that enhanced his third degree murder conviction, a second degree felony, to a first degree felony under section 775.087(1), Florida Statutes (1987) because appellant used a weapon while committing the felony. He argues that his use of a weapon was an essential element of the offense and should not have been used to enhance his sentence under section 775.087(1)....

...was aggravated by his use of a deadly weapon. The jury also made a specific finding that appellant had used a weapon. The trial court then enhanced appellant's sentence from third degree murder, a second degree felony, to a first degree felony under section 775.087(1) on the grounds that appellant had used a weapon, the broken bottle, when he committed the felony. We believe this enhancement was error. Section 775.087(1) requires trial courts to reclassify felonies upward, "whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such felony the defendant uses ... any weapon or firearm... ." Section 775.087(1) thus has two requirements before a court may reclassify an offense....

...See Griffin v. State, 509 So.2d 980 (Fla. 2d DCA 1987). See e.g., Daniels v. State, 473 So.2d 722 (Fla. 4th DCA 1985); Bell v. State, 394 So.2d 570 (Fla. 5th DCA 1985); Whitehead v. State, 446 So.2d 194, 198 (Fla. 4th DCA 1984). Because it is improper under section 775.087(1) to enhance a sentence for use of a weapon if one of the essential elements of the felony charged is use of a weapon, we hold that the court here improperly enhanced appellant's sentence....

...a firearm, burglary of a structure with an assault or battery, and possession of a firearm by a convicted felon. As charged, each offense was subject to the 10-20-life statute, which governs sentencing for specified offenses involving a firearm. See § 775.087(2), Fla....

...Defense counsel urged that the State misread Sousa. Accepting the State's position, the trial court said: I want the record to reflect that my reading of the case of Adam Sousa reported at 903 So 2d [sic] 923 requires the imposition of consecutive sentences. At issue is the meaning of section 775.087(2)(d), Florida Statutes (2003): It is the intent of the Legislature that offenders who actually possess, carry, display, use, threaten to use, or attempt to use firearms or destructive devices be punished to the fullest extent of the...

...be imposed for each qualifying felony count for which the person is convicted. The court shall impose any term of imprisonment provided for in this subsection consecutively to any other *557 term of imprisonment imposed for any other felony offense. § 775.087(2)(d), Fla....

...The issue presented on appeal was whether the trial court had the authority to impose the minimum mandatory sentences consecutively. Id. Relying on Mondesir v. State, 814 So.2d 1172 (Fla. 3d DCA 2002), the Second District Court reversed the trial court and held that section 775.087(2)(d) prohibited the trial court from imposing the sentences consecutively....

...ourt's sentence. Id. at 928. The Sousa court proceeded in its analysis of the sentences by first considering whether the trial court would have had the authority to impose consecutive minimum mandatory sentences before the 10-20-life statute amended section 775.087 in 1999, and then considering how, if at all, the trial court's authority was limited by these amendments....

...Christian, 692 So.2d at 890-91. The Sousa court concluded that the trial court had the authority under Christian to consecutively impose the defendant's minimum mandatory sentences. Sousa, 903 So.2d at 926. The Sousa court next considered whether the 1999 amendments to section 775.087 altered the law announced in Christian. The court wrote: *558 We disagree that section 775.087 as amended still does not permit consecutive sentencing. To draw that conclusion we would have to find that the 1999 amendment to section 775.087 overrules our decisions in Christian and Thomas....

...mean that it had to consecutively impose Irizarry's mandatory minimum 10-20-life sentences. The State argues that the trial court properly ordered the minimum mandatory sentences to run consecutively, because " Sousa held that the plain language of section 775.087(2)(d) demands consecutive mandatory minimums." Moreover, the plain language of the statute, standing alone, requires imposition of the sentences consecutively....

...Judge Griffin's analysis of Sousa appears to me correct. Even though I disagree with the supreme court's interpretation of the statute, we are obliged to follow the law as set forth by the supreme court. Were it not for that obligation, I would affirm the trial court. Section 775.087(2)(d) says what it says in unambiguous terms.

...0). Originally, the trial court sentenced Allen to twenty years of incarceration, and specified in the order that the sentence carried a mandatory minimum term of three years: "It is further ordered that the 3-year minimum imprisonment provisions of section 775.087(2), Florida Statutes, is hereby imposed for the sentence specified in this count." Section 775.087, Florida Statutes (2000), actually mandated a minimum sentence of ten years, and provided that the defendant would not be eligible for statutory gain-time or any form of discretionary release prior to serving the minimum sentence....

...um punishments authorized for using firearms to commit specified crimes. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. We hold that when a charging document alleges that the defendant used a firearm in committing an offense enumerated in section 775.087(2)(a), Florida Statutes (2002), and the jury specifically finds the defendant guilty of the offense "with a firearm" as charged in the information, the three-year mandatory minimum term authorized by that provision may be imposed....

...rial court erred in giving instructions and a verdict that referred to the crime as aggravated assault with a firearm instead of assault with a deadly weapon. The trial court denied the motion. The court adjudicated Iseley guilty and, as required by section 775.087(2)(a)(1), sentenced him to the mandatory minimum sentence of three years' imprisonment because Iseley possessed a firearm during the commission of the aggravated assault....

...ower by returning a verdict of guilt as to the offense of aggravated assault with a deadly weapon." Id. at 582-83. ANALYSIS We must decide whether the jury instructions and verdict form meet the requirements of Tucker and Overfelt for application of section 775.087. Our review of the proceedings below, as governed by the applicable law, demonstrate that the requirements of Tucker and Overfelt were met. Thus, the trial court properly imposed the three-year mandatory minimum sentence authorized by section 775.087(2)(a)(1)....

...nable the jury to exercise its pardon power. [2] Therefore, we reject the Fifth District's ruling that the verdict form in this case denied Iseley an opportunity for a jury pardon. Because the conflict issue involves the interpretation of a statute, section 775.087(2)(a)(1), the standard of review is de novo....

...Chapter 775 prescribes the penalties for substantive crimes. Section 775.082(3)(d), Florida Statutes (2002), provides that a person convicted of a third-degree felony may be punished by a term of imprisonment not exceeding five years. Additionally, section 775.087 requires enhanced penalties when a firearm is used in the commission of certain felony crimes. Section 775.087(2)(a)(1) mandates a minimum three-year sentence of imprisonment if a person possesses a firearm during the commission of an aggravated assault. Specifically, section 775.087(2)(a)(1) states: [A] person who is convicted for aggravated assault, possession of a firearm by a felon, or burglary of a conveyance shall be sentenced to a minimum term of imprisonment of 3 years if such person possessed a "firearm" or "destructive device" during the commission of the offense. In four cases over a fifteen-year period, beginning with Overfelt and concluding with Tucker, this Court has considered the sufficiency of a jury verdict to support application of the penalty enhancement mandated by section 775.087(2)(a)(1)....

...arate finding or by the inclusion of a reference to a firearm in identifying the specific crime for which the defendant is found guilty." Id. at 772. In each of the cases, we required that the application of the mandatory minimum sentence penalty in section 775.087(2)(a)(1) be predicated upon what was termed in Hargrove a "clear jury finding" that the defendant possessed a firearm during the commission of the felony....

...no dispute that the weapon met the definition of a firearm. Consequently, we conclude that because the verdict form contained an express reference to the use of a firearm in the commission of the crime, the evidence supports that finding required by section 775.087, and the verdict of guilt of aggravated assault with a firearm constituted the clear jury finding necessary under our precedent....

...CONCLUSION Accordingly, we reaffirm and adhere to our decisions in Tucker and Overfelt. We quash the decision of the Fifth District Court of Appeal below and remand with directions to reinstate Iseley's conviction and sentence for aggravated assault with a firearm, including the three-year mandatory minimum term under section 775.087(2)(a)....

...Mack, Asst. Public Defender, for appellant. Robert L. Shevin, Atty. Gen., Charles W. Musgrove, Asst. Atty. Gen., for appellee. PER CURIAM. Appellant was charged by information with (1) burglary (with a dangerous weapon) in violation of F.S. 810.02 and F.S. 775.087 and (2) grand larceny in violation of F.S....

...Fernandez with aggravated assault "with a deadly weapon, to wit: a firearm," a third-degree felony, and carrying a concealed firearm. §§ 784.021(1)(a), 790.01(2), Fla. Stat. (1987). Since the deadly weapon was a firearm, the state sought the mandatory minimum sentence of three years' imprisonment. *1010 § 775.087(2), Fla....

...lt with a deadly weapon, and next decides that the weapon was a firearm. Technically, the statutory offense of aggravated assault does not make any distinction between assault with a firearm or any other deadly weapon. This distinction is created by section 775.087(2), Florida Statutes (1987)....

...Hyndman, Assistant Attorney General, West Palm Beach, for appellee. PER CURIAM. The appellant, Hatachi Coke, seeks review of an order denying his rule 3.800(a) motion to correct illegal sentence. Coke *1217 alleges his 25-year minimum mandatory sentence, imposed pursuant to section 775.087(2)(a)3., Florida Statutes, is illegal because the information did not sufficiently allege death or great bodily injury, despite the jury finding of great bodily injury for shooting the victim in the legs....

...MMANUEL against the will of FERNIE EMMANUEL, and in doing so used a pistol which HATACHI O. COKE discharged at FERNIE EMMANUEL, shooting FERNIE EMMANUEL in the legs, and used a firearm a deadly weapon, contrary to Florida Statutes 784.045(1)(a)2 and 775.087(2). (2 DEG FEL) (Emphasis added). The jury found Coke guilty as charged and made a specific finding of fact that the victim suffered great bodily injury. For the trial court to enhance the sentence, pursuant to section 775.087(2)(a)3., Florida Statutes (2000), the "grounds for enhancement must be charged in the information" and the jury must make a factual finding concerning those grounds....

...We do not believe due process requires any more specificity. In fact, the allegations are more specific than simply alleging "great bodily harm." Under this factual scenario, the information sufficiently put the defendant on notice of the likelihood of enhanced sentencing, pursuant to section 775.087(2)(a)3., Florida Statutes. And, the jury specifically found that the victim suffered great bodily harm. Affirmed. STONE, POLEN and MAY, JJ., concur. NOTES [1] Each of these cases reversed sentences under section 775.087, Florida Statutes, but under distinguishable factual circumstances.

10-year mandatory minimum sentence pursuant to section 775.087(2)(a)l., Florida Statutes (1999). 3

...The defendant maintained the trial court had made possession of a firearm an element of the crime through its instructions to the jury, thereby preventing the court from reclassifying the conviction of a second degree felony to a first degree felony due to possession of a firearm under section 775.087(1), Florida Statutes (1999)....

...t for a term of years not exceeding life or as provided in s. 775.082, s. 775.083, or s. 775.084. The statute does not include the use of a firearm as an essential element of the crime. See State v. Tinsley, 683 So.2d 1089, 1090 (Fla. 5th DCA 1996). Section 775.087(1), Florida Statutes (1999) provides: (1) Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such...

...Dao, Assistant Attorney General, Tampa, for Appellee. FULMER, Judge. Demetrius Muldrow appeals his sentence for attempted robbery with a firearm. Muldrow was sentenced to twenty years in prison, as a minimum mandatory, under the "10-20-Life" statute, section 775.087(2)(a)(2), Florida Statutes (1999)....

...The court is going to find that pursuant to— there was sufficient evidence at the trial for this jury to conclude that you in fact did discharge the weapon in furtherance of the attempted robbery. *242 Based on this finding, the trial court imposed an enhanced sentence of twenty years in prison pursuant to section 775.087(2)(a)(2)....

...discharged a firearm. We agree that Apprendi applies, and as the State points out, Florida Supreme Court precedent that predates Apprendi would also require a clear jury finding that Muldrow discharged a firearm in order to justify enhancement under section 775.087(2)(a)(2)....

...firearm. We disagree with this contention. The phrase "with a firearm, as charged" incorporates the factual allegation that Muldrow possessed a firearm, which would justify imposition of a ten-year minimum sentence under the enhancement provision in section 775.087(2)(a)(1)....

...We reject *243 without discussion the issue raised in consolidated case no. 2D01-2166. Case 2D01-2166 affirmed; in case 2D01-2106, the conviction is affirmed, but the sentence is reversed and remanded with directions. WHATLEY and SILBERMAN, JJ., Concur. NOTES [1] § 775.087(2)(a)(1), Fla. Stat. (1999). [2] § 775.087(2)(a)(2), Fla....

...Jim Smith, Atty. Gen., and Paul Mendelson, Asst. Atty. Gen., for appellee. Before HUBBART, C.J., and BARKDULL and HENDRY, JJ. HENDRY, Judge. This appeal challenges the imposition of mandatory three year prison terms on a youthful offender pursuant to section 775.087(2), Florida Statutes (1979)....

...58, Florida Statutes (1979). Notwithstanding appellant's status as a youthful offender, prior to sentencing the trial judge stated that he was obligated to impose a mandatory three year minimum term of imprisonment for each charge in accordance with section 775.087(2) because appellant carried a firearm during the robbery. Consequently, appellant was sentenced to two concurrent three year minimum terms. Appellant submits that his status as a youthful offender under Chapter 958 precluded the minimum three year sentences imposed under section 775.087....

...to imprisonment by preventing their association with older and more experienced criminals during the terms of their confinement. Clearly, this objective would be defeated if youthful offenders were sentenced to mandatory terms of imprisonment under section 775.087(2). [2] Moreover, the Act itself provides for mandatory one year sentences for particularly serious crimes or dangerous offenders; a provision plainly substituting for the minimum three year sentence for adult offenders under section 775.087....

...ts who meet its criteria. We also agree with appellant that the imposition of a mandatory minimum three year sentence for unlawful possession of a firearm was erroneous for the additional reason that this crime is not one of the enumerated crimes in section 775.087(2)....

...ct which would be a capital, life, or first degree felony if committed by an adult. [2] We point out that under the Act appellant can be sentenced to three years imprisonment (see § 958.05); but that the mandatory minimum term of imprisonment under § 775.087(2) was improper.

...Marshall later admitted to another officer his involvement in the drug sale and possession of the gun. Marshall also stated he had seen Willingham grab and fire the pistol. The one issue we must address in this appeal is: Whether a defendant can be reclassified to a higher felony under section 775.087(1), Florida Statutes (1987), [1] when an accomplice, and not the defendant, holds a firearm during a drug transaction? The state charged Willingham with both possession of the cocaine with the intent to deliver or sell and the delivery or sale of cocaine as offenses occurring with a firearm. The state relied on section 775.087(1) to enhance each crime to a higher degree felony....

...nse. But see Menendez v. State, 521 So.2d 210 (Fla. 1st DCA 1988) (court found substantial, competent circumstantial evidence that defendant carried or used a firearm at some point in the course of trafficking in cocaine to support enhancement under section 775.087(1), since the trafficking offense is essentially ongoing and can last for a period of months)....

...all, which was instructed by the trial court. See § 777.011, Fla. Stat. (1987). There do not appear to be any cases which specifically address the vicarious use or carrying of a firearm for the purpose of enhancement of a defendant's sentence under section 775.087(1). However, there is ample case law which holds that vicarious possession is not adequate for purposes of imposing the three-year mandatory minimum provision under section 775.087(2) [2] ; possession under that subsection must be direct. Jenkins v. State, 448 So.2d 1060 (Fla. 4th DCA 1984), reversed on other grounds, 466 So.2d 1068 (Fla. 1985); Brown v. State, 358 So.2d 92 (Fla. 4th DCA), cert. denied, 364 So.2d 881 (Fla. 1978). A plain reading of section 775.087(1) would be to require proof that Willingham actually carried or used a firearm during the course of the offense....

...Otherwise, the judgments and sentences are affirmed. We remand this matter to the trial court with directions to proceed in accordance with this opinion. AFFIRMED IN PART; REVERSED IN PART; REMANDED WITH DIRECTIONS. SCHOONOVER, A.C.J., and ALTENBERND, J., concur. NOTES [1] 775.087 Possession or use of weapon; aggravated battery; felony reclassification; minimum sentence....

...or during the commission of such felony the defendant commits an aggravated battery, the felony for which the person is charged shall be reclassified as follows: (b) In the case of a felony of the second degree, to a felony of the first degree. [2] Section 775.087 also states in part: (2) Any person who is convicted of: (a) Any murder, sexual battery, robbery, burglary, arson, aggravated assault, aggravated battery, kidnapping, escape, breaking and entering with intent to commit a felony, or ai...

...s engaged in the lawful performance of his duties and who had in his possession a "firearm," as defined in s. 790.001(6), or "destructive device," as defined in s. 790.001(4), shall be sentenced to a minimum term of imprisonment of 3 calendar years. § 775.087(2), Fla....

...result of the discharge, great bodily harm was inflicted on the victims. McKenzie's convictions for attempted second-degree murder were reclassified from second-degree felonies to first-degree felonies as a result of the firearm element, pursuant to section 775.087(1), Florida Statutes (2000). The trial court sentenced McKenzie to two terms of life in prison for the attempted murders, each with a twenty-five-year minimum mandatory term pursuant to section 775.087(2)(a)(3), five years in prison for carrying a concealed weapon, and fifteen years in prison for shooting into a building, all to run concurrently....

...The jury found that McKenzie discharged a firearm in the course of committing the attempted murders. Therefore, McKenzie was charged with, and convicted of, an attempt to commit a felony during which he discharged a firearm, an offense that carries a minimum mandatory term of twenty years in prison, pursuant to section 775.087(2)(a)(2)....

...All charges stemmed from an incident on January 21, 2000 during which Wilchcombe beat his wife at their home, pointed a loaded gun at her, confined her against her will, and threatened to kill her. Wilchcombe was sentenced to 3 years minimum mandatory for aggravated assault with a firearm, per Section 775.087(2)(a)(1)(f), Florida Statutes (2000); a consecutive 10 years minimum mandatory for aggravated battery with a firearm, per Section 775.087(2)(a)(1)(g), Florida Statutes (2000); a consecutive 21 months for false imprisonment with a firearm (to commence after the 13 years of minimum mandatory sentences for aggravated assault with a firearm and aggravated battery with a fir...

...and did not amount to "fundamental error" which tainted the validity of the trial. Jones v. State, 666 So.2d 995 (Fla. 5th DCA 1996). Finally, Wilchcombe urges that the trial court misapplied the sentencing statutes, incorrectly believing that under Section 775.087, Florida Statutes(2000)(the 10-20-life law) it had to sentence Wilchcombe to consecutive minimum mandatory sentences on charges all arising from the same criminal episode....

...We agree with Wilchcombe that the trial judge was mistaken in this regard, on the basis stated in Mondesir v. State, 814 So.2d 1172 (Fla. 3d DCA 2002). See also Williams v. State 820 So.2d 1000 (Fla. 3d DCA 2002)(affirming concurrent minimum mandatory sentences under Section 775.087); Stafford v....

...ality of the circumstances, including the officer's immediate contact with the defendant after hearing the BOLO and the defendant's suspicious conduct consistent with guilt). Appellant also contends the trial court erred in sentencing him under both section 775.087(2)(a), Florida Statutes (1999), the Prison Releasee Reoffender Punishment Act ("PRRPA"), and section 775.082(3)(a) ("10-20-Life")....

...ay not sentence a defendant to a sentence under a separate sentencing statute that is equal to the PRRPA sentence. Only where the separate sentence is greater than the PRRPA sentence may it be imposed. In this case, the sentences entered pursuant to section 775.087(2)(a) were not greater than the PRRPA sentences....

...The court's power to run sentences consecutively is not the criterion to determine whether a separate sentencing statute is greater than a sentence under the PRRPA; rather, it is the sentence that appears on the face of the statute that governs. We therefore reverse and remand to vacate those sentences imposed under section 775.087(2)(a)....

...Parker was found guilty and convicted of the attempted second degree murder with a firearm of Sharpe, three counts of aggravated assault with a firearm of Scott Likowski, Debra Horner and Eric Whitehead and of the domestic battery of Sharpe. The State filed a notice of its intent to seek a sentence pursuant to section 775.087, Florida Statutes (1999), for use of a firearm during the commission of a qualifying felony....

...At the sentencing hearing, the State requested the mandatory minimum sentence of 25 years for the attempted murder with a firearm offense. The State requested a three-year minimum mandatory sentence on each count of aggravated assault with a firearm. The State argued that, pursuant to section 775.087(2)(d), Florida Statutes (1999), the trial court was required to impose *497 consecutive sentences, so that the sentences on each aggravated assault count ran consecutive to each other and to the 25-year sentence....

...ossession of the same firearm, even though the firearm was used in the commission of different felonies. The trial court sentenced Parker to the minimum mandatory term of 25 years in prison on the attempted murder with a firearm offense, pursuant to section 775.087, Florida Statutes (1999), followed by 15 years probation, and to five years in prison on the three aggravated assault with a firearm offenses, to run concurrent to each other and to the 25 year sentence....

...The trial court sentenced Parker to time served on the domestic battery offense. The State argues that the trial court erred when it failed to sentence Parker to the minimum mandatory term of three years in prison on each of the three counts of aggravated assault with a firearm, pursuant to section 775.087, Florida Statutes (1999). We agree. A trial court is required to impose a minimum three-year mandatory sentence for use of a firearm where the defendant is convicted of aggravated assault with a firearm. See §§ 775.087(2)(a)1., 775.087(2)(d), Fla....

...ed. Id. Thomas was convicted of attempted first-degree murder of the woman and of aggravated assault of her son. Id. The trial court ordered consecutive three-year mandatory minimum sentences for each offense for possession of a firearm, pursuant to section 775.087(2), Florida Statutes (1979)....

...ictims, and impermissible where the defendant does not fire the weapon. Id. at 890-91 (footnotes omitted) (emphasis added). The court determined that since Christian shot two people, stacking was permissible. Id. at 891. Since the Christian opinion, section 775.087(2) has been amended to include subsection (2)(d). See § 775.087(2)(d), Fla....

...Kromash, Certified Legal Intern, for appellee. Before SCHWARTZ, C.J., and HUBBART and COPE, JJ. HUBBART, Judge. This is an appeal by the defendant Andre Mesa from a final judgment of conviction and sentence for attempted second-degree murder with a firearm [§§ 782.04(2), 777.04(4)(d), 775.087, Fla. Stat. (1991)] entered upon an adverse jury verdict. The sole point presented on appeal is that the trial court erred (1) in treating the defendant's conviction as an enhanced first-degree felony under Section 775.087(1)(b), Florida Statutes (1991), when sentencing the defendant to life imprisonment as a habitual felony offender [§ 775.084(4)(a)(1), Fla. Stat. (1991)], and (2) in sentencing the defendant to a mandatory minimum term of three-years imprisonment under Section 775.087(2)(a), Florida Statutes (1991), because the information upon which the defendant was charged and convicted did not allege that the defendant possessed a firearm....

...he information by failing to file a motion to dismiss the information based on such omission, and (2) the above judgment of conviction and sentence was otherwise properly *1096 entered, notwithstanding this defect, because the information references Section 775.087, Florida Statutes (1991) as one of the statutes the defendant was charged with violating....

...to effect the death of a white Latin male known as JOSE BATISTA, did attempt to kill a white Latin Male known as JOSE BATISTA, a human being, and in such attempt did shoot NICHOLAS HARTA SANCHEZ, a human being, in violation of 782.04(1), 777.04 and 775.087 Fla....

...ing this offense; [3] the defendant did not object at trial to the use of the special jury verdict form or to the recording of the verdict upon the jury's return. The trial court treated the defendant's conviction as an enhanced first-degree felony [§ 775.087(1)(b), Fla. Stat. (1991)], and sentenced the defendant upon this conviction to life imprisonment as a habitual felony offender [§ 775.084(4)(a)(1), Fla. Stat. (1991)]; the defendant was also given a three-year mandatory minimum sentence. § 775.087(2)(a), Fla. Stat. (1991). The defendant appeals. II It is well settled in this state that "`before a trial court may enhance a defendant's sentence [under § 775.087(1), Fla. Stat. (1991)] or apply the mandatory minimum sentence for use of a firearm [under § 775.087(2)(a), Fla....

...Overfelt, 457 So.2d 1385, 1387 (Fla. 1984) (quoting with approval from Overfelt v. State, 434 So.2d 945, 948 (Fla. 4th DCA 1983)). Because (1) possession of a firearm or weapon is absolutely necessary in order to enhance a defendant's sentence under Section 775.087(1), Florida Statutes (1991), [4] and (2) possession of a firearm *1097 or destructive device is absolutely necessary in order to invoke the three-year mandatory minimum sentence under Section 775.087(2)(a), Florida Statutes (1991), [5] it has long been held that such prohibited possession is an essential element of the crime charged and therefore must be alleged in the indictment or information in order to charge a crime under the above statutes....

...tempted second-degree murder, but only alleges that the defendant "did shoot" at the intended victim in an attempt to murder the said victim, the information did not properly allege the essential element of possession of a firearm in order to invoke Section 775.087(1)(b), (2)(a), Florida Statutes (1991)....

...eging an essential element of the crime *1098 charged constitutes a waiver of such a defect under these circumstances. DuBoise; State v. Cadieu, 353 So.2d 150 (Fla. 1st DCA 1977). B Because count III of the information in the instant case references Section 775.087, Florida Statutes (1991) as one of the statutes the defendant was charged with violating, we conclude that the judgment of conviction and sentence was properly entered below upon the jury's conviction on this count, even though the in...

...The failure of the defendant to file a pretrial motion to dismiss the information for not alleging this essential element constitutes a waiver of such defect in this case. We have not overlooked a line of Florida cases which have consistently set aside a judgment of conviction imposed under Section 775.087(1), Florida Statutes (1991), as an enhanced felony, or a three-year mandatory minimum sentence imposed under Section 775.087(2)(a), Florida Statutes (1991), where the indictment or information failed to allege possession of a firearm as an essential element of the charged crime. See cases collected supra note 6. In these cases, however, the indictment or information also failed to reference Section 775.087, Florida Statutes (1991) as a statute which the defendant was charged with violating, and, as a consequence, the indictment or information wholly failed to state a crime under the statute and no judgment of conviction or sentence could be imposed under said statute. Because the information in the instant case referenced Section 775.087, Florida Statutes (1991) as one of the statutes the defendant was charged with violating, these cases do not control our decision today. Moreover, it is undisputed that the jury expressly found the defendant guilty of possessing a firearm based on substantial competent evidence adduced below, so that all the requirements for invoking Section 775.087 were met in this case. Overfelt. For the above-stated reasons, we conclude that a judgment of conviction for attempted second-degree murder with a firearm [§§ 782.04(2), 777.04(4)(d), 775.087, Fla. Stat. (1991)] as an enhanced first-degree felony [§ 775.087(1)(b), Fla....

...(1991)] was properly entered in this case — and that the defendant was properly sentenced to life imprisonment as a habitual felony offender [§ 775.084(4)(a)(1), Fla. Stat. (1991)], with a three-year mandatory minimum sentence of three-years imprisonment [§ 775.087(2)(a), Fla....

...ied as follows: (a) In the case of a felony of the first degree, to a life felony. (b) In the case of a felony of the second degree, to a felony of the first degree. (c) In the case of a felony of the third degree, to a felony of the second degree." § 775.087(1), Fla....

...engaged in the lawful performance of his duties and who had in his possession a `firearm,' as defined in s. 790.001(6), or `destructive device,' as defined in s. 790.001(4), shall be sentenced to a minimum term of imprisonment of 3 calendar years." § 775.087(2)(a), Fla....

...in committing said battery, did intentionally or knowingly cause great bodily harm, permanent disability, or permanent disfigurement to the said Tony Peterson, Jr., or did use a deadly weapon, to wit: a firearm, contrary to Florida Statute 784.045; 775.087(2)(a)(3).......

...The court further finds that during the commission of this offense the defendant, Ennis Rogers, possessed a firearm and discharged the firearm and as a result of the discharge, great bodily harm was inflicted upon a person Tony Peterson. (Emphasis added.) Rogers was sentenced to life imprisonment pursuant to section 775.087(2)(a)(3), Florida Statutes (2001), which provides for an enhanced sentence when a person discharges a firearm during the commission of an enumerated felony *771 and thereby inflicts serious bodily harm....

...The grounds for enhancement of a sentence must be charged in the information. See Jackson v. State, 852 So.2d 941, 944 (Fla. 4th DCA 2003), review denied, 869 So.2d 540 (Fla.2004). An allegation of "use" of a firearm will not sustain an enhanced sentence under section 775.087(2)(a)(3), because a firearm may be used to inflict serious bodily injury without being discharged, and the statute requires that the weapon be discharged for the enhancement to apply....

...felony of attempted second degree murder with a firearm. He filed a rule 3.800(a) motion, arguing that his sentence exceeds the 30 year statutory maximum for a first degree felony. However, the trial court held that the sentence was authorized under section 775.087(2)(a)3, Florida Statutes, because the jury found that appellant had discharged a firearm, causing great bodily harm. Section 775.087(2)(a)3, Florida Statutes, provides that any person convicted of a designated felony who discharged a firearm, resulting in death or great bodily harm, "shall be sentenced to a minimum term of imprisonment of not less than 25 years and...

...more than a term of imprisonment of life in prison." The trial court reasoned that the statute created a new statutory maximum of life and concluded that appellant's combined sentence of 45 years did not exceed that statutory maximum. *876 However, section 775.087(2)(b), Florida Statutes, explains that the quoted provision does not prevent a court from imposing a longer sentence of incarceration "as authorized by law in addition to the minimum mandatory sentence." Also, section 775.087(2)(c), Florida Statutes, states that if the minimum mandatory term under this section exceeds the maximum sentence authorized by sections 775.082, 775.084 or the Criminal Punishment Code, then the mandatory minimum sentence must be im...

...he minimum mandatory term under this section, which is 25 years, or the statutory maximum under section 775.082, which is 30 years in this case, or the maximum authorized by the habitual offender statute or the Criminal Punishment Code. Accordingly, section 775.087 clearly establishes a minimum mandatory term of 25 years....

...It does not change the statutory maximum for all of the affected offenses to life when a weapon is discharged and causes death or great bodily harm. The state relies on Brazill v. State, 845 So.2d 282 (Fla. 4th DCA 2003), which affirmed a 28 year sentence under section 775.087(2)(a)3 for second degree murder....

...a legal sentence. REVERSED and REMANDED. MONACO, J., concurs. GRIFFIN, J., concurs specially, with opinion. GRIFFIN, J., concurring. I agree with the outcome of the majority, but write to offer a slightly different analysis. The question is whether section 775.087(2)(a)3., Florida Statutes (the "10/20/life" statute), will permit a twenty-five year mandatory minimum prison sentence with an additional twenty years of probation to follow where the statutory maximum prison sentence for the offense is capped at thirty years under section 775.082. The trial court reasoned the sentence it imposed was authorized by statute because section 775.087(2)(a)3....

...less than 25 years and not more than a term of imprisonment of life in prison. Id. (emphasis supplied). Although the trial court recognized that a combined sentence of incarceration and probation cannot exceed the statutory maximum, it reasoned that section 775.087(2)(a)3....

...whereas, in fact, what the legislature did was to authorize inflation of the statutory minimum mandatory sentence. In Brown v. State, 843 So.2d 930 (Fla. 3d DCA 2003), the court allowed a mandatory minimum term of life in prison to be imposed under section 775.087(2)(a)3....

...s mandatory minimum terms of imprisonment." Id. at 931. In Brazill v. State, 845 So.2d 282 (Fla. 4th DCA 2003), the court affirmed a twenty-eight year mandatory minimum sentence for the crime of second-degree murder, stating that: A plain reading of section 775.087(2)(a)3....

...indicates that the minimum term that may be imposed ranges from twenty-five years to life imprisonment. The precise length of the mandatory minimum is a discretionary sentencing decision of the trial court. Id. at 292; see also State v. Waldron, 835 So.2d 1217, 1218 (Fla. 5th DCA 2003). Section 775.087(2)(c), Florida Statutes, provides: If the mandatory minimum terms of imprisonment imposed pursuant to this section exceed the maximum sentences authorized by section 775.082, section 775.084, or the Criminal Punishment Code under chapter 921, then the mandatory minimum sentence must be imposed....

...ession of drug paraphernalia. He was sentenced on each of the felony counts to 12 years incarceration, with a ten year minimum mandatory term, each count to run consecutively. The consecutive ten year minimum mandatory terms were imposed pursuant to section 775.087(2)(a)1., Florida Statutes, known as "The 10-20-Life Law." [1] After trial, appellant pled to a charge of possession of a firearm by a convicted felon....

...He argues that the sentences are illegal because the court cannot impose consecutive minimum mandatory terms for the firearm offenses committed during a single criminal episode. *606 If minimum mandatory terms for firearm offenses are appropriate under section 775.087(2), Florida Statutes (2002), and the offenses were tried together in the same prosecution, it is generally within the trial court's discretion to impose either concurrent or consecutive minimum mandatory terms....

...episode. It has long been held that the Legislature did not intend for minimum mandatory terms to run consecutive to each other when the firearm offenses all occurred during the same criminal episode. This precedent predates the "10-20-Life Law" in section 775.087(2)(a), Florida Statutes (2002). See Palmer v. State, 438 So.2d 1 (Fla.1983). The Stafford case which was cited by the trial court in denying relief held that a sentencing court retains discretion to impose concurrent minimum mandatory terms under section 775.087(2) for firearm offenses included in the same prosecution....

...State, 438 So.2d 1 (Fla.1983). In Palmer, the supreme court held that multiple minimum mandatory sentences arising out of a single criminal episode must be served concurrently and not consecutively. Palmer predates the enactment of the relevant revision to section 775.087(2)(d), Florida Statutes, and interpreted section 775.087 as it then existed. I believe that a reasonable argument can be made that section 775.087(2), in its current form, represents a legislative repudiation of the holding of Palmer. At the same time, I recognize that neither the statute nor the Legislature's staff analysis of the bill revising section 775.087 expressly indicates the Legislature's intent to nullify Palmer. CS/SB 194, which became chapter 99-12, Laws of Florida, and created subsection 775.087(2), stated the intent of the Legislature in revising section 775.087(2)....

...tent of the law, *608 and the minimum terms of imprisonment imposed pursuant to this subsection shall be imposed for each qualifying felony count for which the person is convicted. Fla. CS for SB 194 (1999) (First Engrossed). Based on this language, section 775.087(2), as revised, clearly indicates to me that the Legislature intended offenders who possess, carry or use firearms be punished to the full extent of the law. In Stafford v. State, 818 So.2d 693 (Fla. 5th DCA 2002), we recognized that the trial court was not required to impose consecutive minimum mandatory sentences under section 775.087, but we did not hold that the court was not permitted to do so....

...[3] We reverse Ellis's sentence for attempted sexual battery while armed, but otherwise affirm the trial court. Attempted sexual battery while armed is a second degree felony. §§ 777.04(1), (4)(b), 794.011(3), Fla. Stat. (1991). The trial court enhanced the offense to a first degree felony, apparently pursuant to section 775.087, Florida Statutes (1991), which permits reclassification for use of a weapon during commission of a felony, except for those felonies in which use of a weapon is an essential element....

...der statute. § 775.084(4)(a)1, Fla. Stat. (1991). However, because the use of a weapon is an essential element of the offense of attempted sexual battery while armed, it was error to use the weapon to reclassify the offense to a higher degree under section 775.087....

...regular guidelines sentence or a departure sentence). Ellis also argues that the trial court erred by reclassifying his conviction for attempted armed robbery with a deadly *516 weapon from a second degree felony to a first degree felony pursuant to section 775.087....

...We agree that the reclassification in this case was error. See Hill v. State, 438 So.2d 513 (Fla. 5th DCA 1983) (recognizing that robbery with a firearm is an "already-enhanced" charge under the robbery statute and thus cannot be reclassified under section 775.087(1))....

...We reverse the robbery sentences as unauthorized. The indictment for the two armed robbery counts reads, in relevant part, that "during the commission of this felony JOHN S. LANE carried, displayed or used a firearm, to wit: a handgun, contrary to Section 812.13(1) and (2)(a) and 775.087 of the Florida Statute." Section 775.087, Florida Statutes, provides, in pertinent part: (2) (a) 1....

...790.001 and, as the result of the discharge, death or great bodily harm was inflicted upon any person, the convicted person shall be sentenced to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison. § 775.087(2)(a)1 & 3, Fla. Stat. (emphasis added). Known as the "10-20-Life" statute, section 775.087 "provides for the enhancement of a crime where a firearm is possessed or used during the commission of certain enumerated crimes." Jackson v....

...nd the jury must make a factual finding concerning those grounds." Coke v. State, 955 So.2d 1216, 1217 (Fla. 4th DCA 2007) (internal quotation and citation omitted). In Jackson, 852 So.2d at 944, this court reversed the enhanced sentence pursuant to section 775.087(2)(a)3 where the defendant "was not charged with `discharging' a firearm during the commission of said felony, or of inflicting death or great bodily harm as the result of such." There, "the information merely charged that Jackson had `carried' a firearm." Id. However, this court concluded that the "allegation of `carrying' a firearm can sustain a sentence under section 775.087(2)(a)1" and remanded with instructions to resentence pursuant to the proper subsection....

...defendant of the `great bodily harm' element"). The trial court sentenced Lane to life without parole on count I (murder), and to *228 life in prison on both counts II and III (armed robbery), with a twenty-five year mandatory minimum sentence under section 775.087(2) and (3)....

...The indictment did not allege that Lane discharged the firearm or that as a result of that, death or great bodily harm was inflicted. The state concedes that the twenty-five year mandatory minimum sentence "should be stricken." Similar to the result in Jackson, we remand for re-sentencing pursuant to section 775.087(2)(a)1, as it appears that the allegation that Lane "carried" a firearm "can sustain a conviction under" that section....

...at decision, this case is being considered en banc by the court's criminal division pursuant to Florida Rule of Appellate Procedure 9.331(b). The prison inmate in this case received a sentence which included a three year minimum mandatory term under section 775.087(2), Florida Statutes (1985)....

...and rules, the court felt constrained by the decision in Buffa and therefore granted relief. Like the present case, Buffa involved a forfeiture of gain time in connection with disciplinary action during a minimum mandatory term of imprisonment under section 775.087(2)....

...ish the inmate's tentative release date pursuant to section 944.275(3)(a). This approach is also consistent with the department's prior rules, and is clearly specified in the current rules. See Fla. Admin. Code R. 33-11.0035(1); 33-11.0045. Although section 775.087(2) disqualified the inmate from accruing basic gain time for the minimum mandatory portion of the sentence, this does not preclude a lump sum award based on the remainder of the sentence....

...lissa Shires against her will and without lawful authority with intent to commit or facilitate commission of a felony, to-wit: Armed Robbery, and in the course thereof, he armed himself with a weapon, to-wit: a handgun, contrary to F.S. 787.01 and F.S. 775.087(1)." As the Information only charged appellant with kidnapping during the commission of the armed robbery, Faison is directly applicable....

...ny. See § 893.135(1)(f)(1)(b), Fla. Stat. (Supp. 1996). Because Mr. Grantham used a weapon during the commission of this trafficking offense, the crime was reclassified by one felony degree, and its penalty was enhanced by one sentencing level. See § 775.087(1), Fla....

...oints to Mr. Grantham's scoresheet, which is the same number of points added for use of a firearm under section 921.0014(1), Florida Statutes (Supp.1996). Mr. Grantham argues that the inclusion of the points attributable to the use of a weapon under section 775.087(1) prohibits the court from including the points for use of a firearm under section 921.0014(1), Florida Statutes (Supp.1996). See also Fla. R.Crim. P. 3.703(d)(19). Because trafficking in methamphetamine, armed or otherwise, is not an offense enumerated in section 775.087(2) and the carrying or possessing of a weapon or firearm is not an essential element of that offense, we conclude that the trial court properly reclassified the felony pursuant to section 775.087(1), resulting in an increase of sentencing points....

...ed in these two separate statutes. Affirmed with instructions. CASANUEVA, J., and DANAHY, PAUL W., (Senior) Judge, Concur. NOTES [1] Indeed, the reclassification can occur if the defendant commits an aggravated battery without use of any weapon. See § 775.087(1), Fla....

...preserved by objection at sentencing or by motion to correct sentence. After the jury returned a verdict of guilty for attempted second-degree murder, the trial court imposed a 45-year sentence, with a 25-year minimum mandatory sentence pursuant to section 775.087(2)(a)3, Florida Statutes (2003)....

...(2003). Attempted second-degree murder is thus a second-degree felony punishable by a maximum sentence of 15 years. If, as in the instant case, the offense is committed with a firearm, the crime is re-classified to a first-degree felony pursuant to section 775.087(1)(b), subject to an enhanced sentence not to exceed 30 years....

...oceeding. Goutier, 692 So.2d at 979. See also Badia, 770 So.2d at 300 (court reversed a 40-year sentence for attempted second-degree murder and remanded for re-sentencing). Appellant is subject to a mandatory minimum sentence of 25 years pursuant to section 775.087(2)(a)3, Florida Statutes (2003), for discharge of a firearm resulting in death or great bodily harm....

...___ Guilty of Aggravated Assault, a lesser included offense. [If you have checked one of the above, then please indicate whether or not a firearm was used. X Yes ___ No] (R. 79). Aggravated battery is a second-degree felony. Section 784.045(2), Florida Statutes. Section 775.087(1)(b), provides that a second-degree felony shall be reclassified to a first-degree felony when, during the commission of the felony the defendant carries, displays, uses, threatens, or attempts to use any weapon or firearm, unless the use of a weapon or firearm is an essential element of the felony committed. Section 775.087(1) permits reclassification and the consequential enhancement of penalties for the crime of aggravated battery causing great bodily harm when a weapon is used to commit the crime. Lareau v. State, 573 So.2d 813 (Fla. 1991). Before a conviction for aggravated battery may be reclassified pursuant to section 775.087, the jury must make a factual finding that the defendant committed the crime while using a firearm....

...and affirm the conviction. We do find merit in his argument that part of his sentence is in error. He argues that count V of the information alleged that he "carried a firearm" and not that he "discharged a firearm" for purposes of sentencing under section 775.087(2). See § 775.087(2), Fla. Stat. (2003). Discharging a firearm in an armed robbery carries a mandatory 20 year sentence, but possessing a firearm carries only a 10 year term. See § 775.087(1)-(2), Fla. Stat. (2003). While the State concedes the allegation did not "specifically" allege discharging a firearm, it argues that it did include a reference to section 775.087(2) in the information....

...bs v. State, 623 So.2d 551, 555 (Fla. 4th DCA 1993)). We emphasized that the defendant was not given notice that he faced the possible 3-year enhancement of any sentence. Bryant, 744 So.2d at 1226. Although we alluded to the failure even to refer to section 775.087(2) in the information, we did not state in so many words that such a mere reference might be sufficient....

...prived him of notice that he would be subject to a mandatory minimum. There we clarified that "using" a firearm does not necessarily mean that a person "discharged" a firearm. 835 So.2d at 1183. In this case the state argues that a mere reference to section 775.087(2) in count V is legally sufficient to give a defendant notice that he faces the particular enhancement of 20 years for discharging a firearm. We disagree. Section 775.087 is a comprehensive sentencing enactment on the subject of weapons involved in the commission of felonies and certain resulting enhancements *520 depending on the specific role of the firearm in the offense. The first subdivision addresses the "presence" of a firearm in all felonies. § 775.087(1), Fla....

...It applies to the possession, use, display, threat to use and actual use of a firearm in any felony. Id. If a firearm is present in the commission of any felony, the offense is stepped up a single grade (e.g., a first degree felony becomes a life felony, and so on). Id. Section 775.087(2), the second subdivision of this statute (the one involved in this case), addresses distinctly different applications of a firearm but only in the commission of several enumerated violent or serious felonies. Subsection (2) has several parts, each subdivided from the others for ease of reference. One of them makes the actual possession of a firearm subject to a minimum mandatory enhancement period of 10 years. § 775.087(2)(a)1, Fla. Stat. (2005). Another makes the actual discharge of the firearm subject to a minimum mandatory enhancement period of 20 years. § 775.087(2)(a)2, Fla. Stat. (2005). Still another makes the actual discharge of a firearm resulting in death or great bodily harm subject to a minimum mandatory enhancement period of not less than 25 years up to a maximum of life in prison. § 775.087(2)(a)3, Fla. Stat. (2005). In addition to the specified enhancements, section 775.087(2) makes clear that the imposition of the minimum mandatory provisions does not prevent even longer sentences within the statutory maximums. § 775.087(2)(b), Fla....

...Still another provision forbids the sentencing judge from suspending, deferring or withholding of sentences under this statute. Id. Finally, the statute specifies increased punishments for the use of semi-automatic firearms with high capacity detachable box magazines. § 775.087(3)(a)(2), Fla. Stat. (2005). We hold that merely referring to section 775.087(2) is not sufficient notice that the accused is being charged with discharging a firearm for purposes of its minimum mandatory sentence enhancement. The general reference to subdivision (2) of section 775.087 is not specific enough to give the accused notice of a possible enhancement of 20 years, because this subdivision contains a lesser alternative. If the state desires to give an accused notice of an enhancement possible within subsection (2) of section 775.087 by a mere reference to the statute itself, then it should state the particular sub-subdivision applicable. In this instance, the State should have referred to section 775.087(2)(a)2, Florida Statutes (2005)....

...[3] He appeals his sentence arguing the trial court erred in ranking his conviction for armed trafficking in cocaine as a level ten offense. Mr. Gamble's armed trafficking conviction should have been ranked as a level seven offense and therefore we vacate his sentence and remand this matter for resentencing. Section 775.087, Florida Statutes (1993), provides that when a defendant displays, uses, threatens, or attempts to use a weapon or firearm during the commission of a first degree felony, the crime shall be reclassified as a life felony....

...012. The trial court overruled this objection. Mr. Gamble committed his crimes on December 27, 1994. Subsequent to this date, our legislature and our supreme court both addressed the issue raised here by Mr. Gamble. First, effective October 1, 1995, section 775.087 was amended as follows: *907 For purposes of sentencing under chapter 921 and determining incentive gain-time eligibility under chapter 944, a felony offense which is reclassified under this section is ranked one level above the ranking under s. 921.0012 or s. 921.0013 of the felony offense committed. § 775.087, Fla....

...Second, effective October 1, 1996, rule 3.703(c)(2) of the Florida Rules of Criminal Procedure was amended to provide: "An offense does not become unlisted and subject to the provisions of section 921.0013, because of a reclassification of the degree of felony pursuant to section 775.0845, section 775.087, section 775.0875 or section 794.023." See Amendments to Florida Rules of Criminal Procedure re: Sentencing Guidelines, 685 So.2d 1213,1214 (Fla.1996)....

...In the opinion adopting this revision, our supreme court explained that enhancement statutes do not "unlist" the crimes for the purposes of determining the applicable offense severity ranking. Id. Although Mr. Gamble committed this crime prior to the enactment of the amendments to section 775.087 and rule 3.703(c)(2), our courts have a duty to consider subsequent legislation in arriving at a correct interpretation of a prior statute. See Ducharme v. State, 690 So.2d 1358, 1360 (Fla. 2d DCA 1997) (citing Ivey v. Chicago Ins. Co., 410 So.2d 494, 497 (Fla.1982)). The amendment to Florida Rule of Criminal Procedure 3.703 makes it clear that the penalty enhancement in section 775.087 does not make a crime "unlisted" for the purposes of determining the applicable offense severity ranking....

...Gamble is entitled to be resentenced with a corrected scoresheet. See Goodwin v. State, 600 So.2d 1310 (Fla. 5th DCA 1992). JUDGMENTS AFFIRMED; SENTENCES VACATED; and CAUSE REMANDED FOR RESENTENCING. DAUKSCH and GOSHORN, JJ., concur. NOTES [1] §§ 893.135(1)(b) 1.a., 775.087(1), Fla....

...The State of Florida appeals the sentence imposed contending that the trial court erred by entering a youthful offender sentence, pursuant to section 958.04, Florida Statutes (1999), and not applying the minimum mandatory of the new 10/20/ Life statute. See § 775.087(2)(a)(1)-(3), Fla....

...The state argues on appeal that the new minimum mandatory provisions of the 10/20/Life statute supersede any other sentence, such as a youthful offender sentence, that may be imposed. We disagree with the state's position and affirm. The 10/20/Life statute went into effect in July 1999 by amending section 775.087, Florida Statutes (1997). Relevant to our inquiry, the predecessor of the 10/20/Life statute provided a three-year minimum mandatory for the possession of a firearm during the commission of the enumerated felonies in the statute. See § 775.087(2), Fla....

...for possessing a firearm, twenty years of imprisonment for discharging a firearm, and life imprisonment for causing death or great bodily harm because of the discharge of a firearm, during one of the enumerated felonies specified in the statute. See § 775.087(2)(a)(1)-(3), Fla. Stat. (1999). Although this appears to be a case of first impression, prior case law is instructive to our determination. Before section 775.087 was amended to include the 10/20/ Life provisions, section 775.087(2), Florida Statutes (1997), required anyone convicted of one of the enumerated felonies who possessed a firearm during the commission of the felony to serve a minimum mandatory sentence of three years of imprisonment. See § 775.087(2), Fla. Stat. (1997). In many cases, the issue arose as to whether the three-year minimum mandatory found in section 775.087(2) superseded a youthful offender sentence. In Salazar v. State, 544 So.2d 313 (Fla. 2d DCA 1989), this court held that the three-year minimum mandatory for use of a firearm provided by section 775.087(2) did not apply to a youthful offender....

...That offense is proven by either actual or constructive possession. James v. State, 868 So.2d 1242, 1245 (Fla. 4th DCA 2004). To impose a three-year mandatory minimum sentence, however, the fact finder must make a specific finding of actual possession. § 775.087(2)(a)1.r., Fla....

...At sentencing, defense counsel objected to the imposition of consecutive minimum mandatory terms of imprisonment because the offenses arose from a single criminal episode. The trial court nevertheless imposed four consecutive 10-year minimum mandatory prison terms under section 775.087(2)(d), Florida Statutes (2001) [1] , for each of four offenses committed by the defendant while possessing a firearm....

...The trial court agreed, but concluded that because of the expiration of the 60-day period for correction of a sentencing error provided by Florida Rule of Criminal Procedure 3.800(b), it could not grant relief. In Stafford v. State, 818 So.2d 693 (Fla. 5th DCA 2002), this court held that section 775.087(2)(d), Florida Statutes, which states that consecutive minimum mandatory sentences shall be imposed for "any other felony offense," contemplates different criminal episodes before minimum mandatory sentences must be stacked....

...onment for a term of years not exceeding life imprisonment. Nathan argues that because the jury convicted him of burglary of a dwelling with assault or battery while armed with a firearm, his sentence should have been enhanced to a life felony under section 775.087(1)(a), Florida Statutes (1991), [3] and, as a life felony, the trial court could not sentence him under the habitual offender statute....

...ny. Here the state elected to charge defendant with burglary with an assault or battery. See § 810.02(2)(a), Fla. Stat. (1993). That offense is a first degree felony punishable by life imprisonment. Id. The effect of the weapon enhancement statute, § 775.087(1), Fla. Stat., is to enhance the offense from a *1152 first degree felony to a life felony. Id. § 775.087(1)(a)....

...775.082, s. 775.083, or s. 775.084, if, in the course of committing the offense, the offender: (a) Makes an assault or battery upon any person. (b) Is armed, or arms himself within such structure or conveyance, with explosives or a dangerous weapon. [3] Section 775.087, Possession or use of weapon; aggravated battery; felony reclassification; minimum sentence, provides, in relevant part: (1) Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the us...

the aggravated battery charge pursuant to section 775.087(2)(a), Florida Statutes (the “10-20-Life” statute)

...SILBERMAN, Judge. Vincent B. Daniel appeals his judgment and sentence for attempted first-degree murder with a firearm. We affirm his conviction without discussion but reverse his minimum mandatory sentence imposed pursuant to the "10-20-Life" statute, section 775.087(2), Florida Statutes (2004). *1241 On appeal, the State properly concedes that the trial court erred in imposing a twenty-five-year minimum mandatory sentence under section 775.087(2)(a)(3)....

...ischarged a firearm that resulted in death or great bodily harm to a person." The trial court imposed a thirty-five year sentence with a minimum mandatory of twenty-five years. In order to subject Daniel to a twenty-five-year minimum mandatory under section 775.087(2)(a)(3), the State must allege in the information that Daniel discharged the firearm and that death or great bodily harm resulted....

...State, 835 So.2d 1181, 1183 (Fla. 4th DCA 2002). "Neither a jury finding nor inclusion of the appropriate statute number in the information can cure this fatal defect." Davis, 884 So.2d at 1061. Thus, we reverse Daniel's twenty-five-year minimum mandatory sentence imposed under section 775.087(2)(a)(3) and remand for resentencing. The State contends that on remand the trial court can impose a ten-year minimum mandatory pursuant to section 775.087(2)(a)(1) for possession of a firearm during an enumerated felony....

...of the crime. In Altieri, the court determined that an allegation that the defendant "`used a deadly weapon, to wit: a firearm'" was sufficient to give the defendant notice that he was subject to a minimum mandatory for possession of a firearm under section 775.087(2)(a)(1)....

...m was in the co-defendant's possession). Furthermore, the jury, in finding that Daniel discharged a firearm, necessarily found that he possessed it. Thus, on remand, the trial court shall sentence Daniel to the ten-year minimum mandatory pursuant to section 775.087(2)(a)(1)....

because robbery is an enumerated felony under section 775.087(2), Florida Statutes, it was error to include

...cture or conveyance, with explosives or a dangerous weapon." However, where the jury makes specific findings that a defendant is guilty of burglary with an assault or battery, as well as with a firearm, the offense is enhanced to a life felony under section 775.087(1)(a), Florida Statutes (1993)....

mandatory minimum sentence of life in prison under section 775,087(2)(a)3, Flori*884da Statutes (2011). The trial

...Church assigns as error the trial court's denial of his motion to suppress evidence of his identification and the court's imposition of the consecutive sentences. We find that the trial court correctly denied his motion to suppress and we affirm his convictions. We conclude, however, that the case law interpreting section 775.087(2)(d), Florida Statutes (2002), requires reversal of his sentences and a remand for resentencing....

...The trial court sentenced him to three consecutive ten-year terms and announced that a ten-year mandatory minimum would apply to each count. Section 812.13, Florida Statutes (2002), provides that robbery with a firearm is a first-degree felony punishable by imprisonment for a term of years not exceeding life. Section 775.087(2)(a)(1), establishes a mandatory minimum of ten years in prison for a person convicted of armed robbery who actually possessed a firearm during the robbery....

...The trial court imposed consecutive sentences totaling 105 years of imprisonment, each including a mandatory minimum. The Florida Supreme Court approved the sentences and reaffirmed its holding in State v. Christian, 692 So.2d 889 (Fla.1997), which had been decided before the passage of subsection 775.087(2)(d)....

...As found by the trial court, armed kidnapping is a life felony and not a first-degree felony punishable by life. See Williams v. State, 650 So.2d 1054 (Fla. 1st DCA 1995). The offense of kidnapping is a first-degree felony punishable by life. § 787.01(2), Fla. Stat. (1993). However, section 775.087(1)(a), Florida Statutes (1993), requires that the trial court reclassify a first-degree felony to a life felony where the use of a weapon or firearm is not an essential element of the offense and a weapon or firearm was used during the offense....

...* * * (2)Whoever commits aggravated battery shall be guilty of a felony of the second degree ... Although aggravated battery is generally a second-degree felony, the trial court concluded that the appellant's conviction was properly reclassified to a first-degree felony pursuant to section 775.087(1), Florida Statutes, based on the appellant's use of a deadly weapon. However, reclassification is not proper where the use of a weapon is an essential element of the offense. See Lareau v. State, 573 So.2d 813 (Fla.1991); Cargle v. State, 829 So.2d 366 (Fla. 1st DCA 2002); § 775.087(1), Fla....

...It is clear that enhancement is precluded because the information alleges the use of a weapon and the statutory provision cited refers to aggravated battery based on the use of a deadly weapon. Indeed, the state concedes that the language of the information precludes enhancement pursuant to section 775.087(1), Florida Statutes....

...*1272 The information filed in case number 92-30, however, is not so clear as it charges the appellant with "aggravated battery GBH/weapon" and alleges that in the course of committing the offense, the appellant caused great bodily harm and used a deadly weapon in violation of sections 784.045(1)(a) and 775.087(1), Florida Statutes....

...State, 672 So.2d 828, 829 (Fla. 2d DCA 1995). Section 784.045, Florida Statutes (2009), provides that a person may be convicted of aggravated battery, a second-degree felony, either by causing great bodily harm or by using a deadly weapon during the commission of the battery. Section 775.087(1), Florida Statutes (2009), provides for the reclassification of a second-degree felony to a first-degree felony if it was committed with the use of a weapon or firearm, unless the use of a weapon or firearm is an essential element of the crime. See Lareau v. State, 573 So.2d 813, 814-15 (Fla.1991). The trial *351 court erred by classifying Oliver's offense as a first-degree felony under section 775.087(1) because it is unclear from the record whether or not the use of a deadly weapon, an automobile, was an essential element of the jury's finding of "aggravated battery causing great bodily harm with a deadly weapon." See Cabral v....

...mself had been a law enforcement officer, and we are unable to find any abuse of discretion in that conclusion. We do find error, however, in sentencing Brown to a minimum mandatory three year sentence for attempted manslaughter with a firearm under § 775.087(2), Fla....

...GUNTHER, Judge, concurring in part; dissenting in part. I agree with the majority that the trial court reversibly erred in sentencing Brown to a three year mandatory minimum for attempted manslaughter with a firearm. As the state concedes, the trial court erred in imposing the sentence because section 775.087(2), Florida Statutes, the statute which imposes a three-year mandatory minimum sentence for a defendant's possession or use of a firearm while perpetrating certain crimes, does not mention and therefore does not apply to manslaughter....

...NOTES [1] Because first-degree murder is a capital felony, an attempt would be classified as a felony of the first-degree. See § 777.04(4)(a), Fla. Stat. (1981). Because of the use of a firearm, the defendant's conviction was enhanced to a life felony. See § 775.087(1)(a), Fla....

...not based on the use of a deadly weapon. Because it is unclear whether appellant was found guilty of aggravated battery based on great bodily harm or the use of a deadly weapon, enhancement of his sentence for the use of a deadly weapon pursuant to section 775.087(1), Florida Statutes, was not permissible....

...Thaddeus Simms (Defendant) appeals the summary denial of his motion to correct illegal sentence, filed pursuant to rule 3.800(a), Florida Rules of Criminal Procedure. The sole issue which he argues on appeal is that the trial court erred in imposing the twenty-five year firearm mandatory minimum pursuant to section 775.087(2), Florida Statutes, where the charging information did not allege that he discharged a firearm, resulting in death or great bodily harm....

...Evidence was presented that he shot both victims, and the jury's verdict specifically found that he discharged the firearm, as to both counts. His sentence for each count included the twenty-five year firearm minimum mandatory term of imprisonment pursuant to section 775.087(2)....

...y premeditated design to effect the death of any particular individual and in the commission of said offense did use and have in his possession a revolver, a firearm as defined in Florida Statute 790.001(6), contrary to Florida Statute 782.04(2) and 775.087(1)(2)....

...while in possession of a firearm, did actually and intentionally touch or strike FREDERICK THOMAS against the will of FREDERICK THOMAS, and in doing so used a revolver, a firearm and deadly weapon, contrary to Florida Statutes *375 784.045(1)(a)2 and 775.087(2)....

...On appeal, he challenges his convictions on the basis that the trial court improperly allowed the State to reveal to the jury that one of his four prior felony convictions was a drug offense. James also challenges his sentence on various grounds, including the argument that he was improperly sentenced on count IV under section 775.087, Florida Statutes (2000), the so-called 10/20/Life statute....

...ncurrent to three and four. [3] As to count four, I'm going to resentence him to 15 years in Florida State Prison with a three year minimum mandatory under the 10, 20, life statute. And that is going to run consecutive to all other counts based upon 775.087 and the argument made by the State....

...ears to the original sentence. We find that James was improperly sentenced under the 10/20/Life statute as to count IV. Count IV of the information charged James with possession of a *1245 firearm by a convicted felon contrary to sections 790.23 and 775.087, Florida Statutes (2000). We agree with the holding in Bundrage v. State, 814 So.2d 1133, 1134 (Fla. 2d DCA 2002), where the court stated: We interpret section 775.087(2)(a)(1) to be a sentencing enhancement statute, not a statute prescribing a new offense....

...Possession of a firearm by a convicted felon can be proven either by an actual or a constructive possession theory. See Daniels v. State, 718 So.2d 1274 (Fla. 2d DCA 1998); Wilcox v. State, 522 So.2d 1062 (Fla. 3d DCA 1988). Thus, in order to apply the enhancement provision of section 775.087(2)(a)(1), the State must prove actual possession....

...e merely owns the firearm or it is in his care or custody. Thus, the jury's guilty verdict in this case does not equate with a finding that James actually possessed the firearm. Therefore, the trial court's decision to enhance James's sentence under section 775.087(2)(a)1....

...rationale of Overfelt. Because the trial judge erred in sentencing James under the 10/20/Life statute on count IV, we must reverse and remand for re-sentencing. The trial judge specifically stated that he was running count IV consecutive because of section 775.087....

...Indeed, at the hearing on the motion to correct sentence, the trial court was incorrectly informed that he was required to run count IV consecutive to counts II and III pursuant to the 10/20/Life statute. However, even if sentencing under the 10/20/Life statute had been proper, section 775.087(2)(d)'s directive regarding consecutive sentences would have had no application to this case, and the court would have been free to run count IV concurrently or consecutively to any of the other counts involved in this single prosecution....

...Affirmed in part, reversed in part, and remanded. STONE and WARNER, JJ., concur. NOTES [1] The court did not make a specific finding whether the sentence for count IV was pursuant to the 10/20/Life statute, although the information cited Florida Statute section 775.087....

...having previously been convicted on January 10, 1996, of the felony crime of Delivery of Cocaine, in the Circuit Court of the Seventeenth Judicial Circuit, In and For Broward County, Florida, did then and there unlawfully own or have in his possession a firearm, contrary to F.S. 790.23 and F.S. 775.087 .......

...Appellant appeals a judgment and sentence finding him guilty of aggravated battery with a weapon, a second-degree felony pursuant to section 784.045(1)(a), Florida Statutes (1989) which the trial court enhanced to a first-degree felony pursuant to section 775.087(1), Florida Statutes. Appellant challenges only the enhancement of his sentence. We reverse his sentence and remand for resentencing without the enhancement under section 775.087(1). Appellant was charged with aggravated battery with a weapon in violation of section 784.045(1)(a) [1] and section 775.087(1) [2] ....

...shown in this case was the infliction of knife wounds. Compare Franklin v. State, 541 So.2d 1227 (Fla. 2d DCA 1989) and Webb v. State, 410 So.2d 944 (Fla. 1st DCA 1982). Therefore, we agree with appellant that enhancement of his sentence pursuant to section 775.087(1) was improper since the use of a deadly weapon effectively was an essential element of the aggravated battery of which appellant was convicted in this case. Appellant's sentence is REVERSED and this cause is REMANDED for resentencing without enhancement pursuant to section 775.087, Florida Statutes....

...I agree with the result reached in Judge Wigginton's opinion. I write simply to make some brief observations. The charging document was properly worded. In order to charge a defendant with first degree felony aggravated battery under the enhancement provided by section 775.087(1), the involvement of the firearm must be alleged in the same count which charges a section 784.045(1)(a) l aggravated *744 battery....

...Prior to 1988, section 784.045( l ) provided as follows: A person commits aggravated battery who, in committing battery: ( a ) Intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement; or ( b ) uses a deadly weapon. [Emphasis supplied.] [2] Section 775.087(1) provides: Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such felony the defendant carries...

...Count III, involving the injured bystander, was submitted to the jury on attempted second degree murder with a firearm, but the jury found appellant guilty of the purportedly lesser included offense of aggravated battery while discharging a firearm and causing serious bodily injury. Under section 775.087, Florida Statutes (2002), our 10-20-life statute, the findings that appellant discharged a firearm and caused serious bodily injury increased the penalty on aggravated battery so that it was not actually less than the penalty for the greater offense, attempted second degree murder with a firearm....

...ous bodily injury does not carry a lesser penalty than attempted second degree murder, appellant argues that it is not a lesser included under Ray. The only argument advanced by the state is that we should not consider an enhancement statute such as section 775.087(2) in determining lesser includeds, because an enhancement statute was not considered when lesser includeds were defined in Ray....

...It follows that we must consider all applicable statutes when determining if a crime is a lesser included offense. Greene v. State, 714 So.2d 554, 557 (Fla. 2d DCA 1998) (maximum sentence is no longer determined only by the degree of the crime); Iseley v. State, 865 So.2d 580 (Fla. 5th DCA 2004) (court considered section 775.087(2) in determining whether aggravated assault with a firearm is a greater offense than aggravated assault with a deadly weapon). Appellant also argues that there is no competent substantial evidence to support *21 the jury finding of serious bodily injury under section 775.087(2)(a)3, Florida Statutes....

...We agree that we should because our decision will affect how juries are instructed in many cases, and because we are uncertain as to whether our resolution of this issue is required by Ray v. State, 403 So.2d 956 (Fla.1981), which defined lesser included offenses, but did not consider the effect of a statute such as section 775.087....

...We conclude that the defendant's reading of the sentencing transcript is correct. On count two, the trial court's oral pronouncement was for a three-year mandatory minimum sentence, to be concurrent with the ten-year mandatory minimum sentence on count one. See § 775.087(2)(a)1., Fla....

...and, as a result of the discharge, death or great bodily harm was inflicted upon any person, the convicted person shall be sentenced to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison. § 775.087(2)(a)3, Fla....

...trial court did not err in enhancing the defendant's sentence pursuant to the terms of the statute and the jury's finding. On cross-appeal, the State challenges the defendant's reduced sentence, arguing that the trial court erred when it interpreted section 775.087 of the Florida Statutes as prohibiting it from imposing a sentence in excess of 30 years and a mandatory minimum in excess of 25 years. We agree. Our review of cases which have similar facts to those presented here leads us to conclude that the trial court's original sentence of 35 years' imprisonment, with a 35-year mandatory minimum, was legal. Pertinent parts of section 775.087 of the Florida Statutes provide as follows: 775.087....

...e sentences that could be imposed as authorized by s. 775.082, s. 775.084, or the Criminal Punishment Code under chapter 921, then the sentence imposed by the court must include the mandatory minimum term of imprisonment as required in this section. § 775.087(1)(b),(2)(a)1.a.3.,(2)(c), Fla....

...'s judgment, but reverse his sentence and remand for re-imposition of the original sentence imposed in this matter. Judgment AFFIRMED. Sentence REVERSED. Cause REMANDED. GRIFFIN and ORFINGER, JJ., concur. NOTES [1] See Fla. R.Crim. P. 3.800. [2] See § 775.087, Fla....

...Public Defender, Daytona Beach, for appellee. DAUKSCH, Judge. This is a proper appeal by the state from an alleged illegal sentence. Rule 9.140(c)(1)(I). The state says the sentence is illegal because the judge refused to require appellee to serve a minimum of three years. See, § 775.087, Fla....

...Fla. Stat. (1981). The statute is specific in its wording — if one arms himself after committing a burglary but while "within such structure" then he is guilty of the armed burglary as opposed to the lesser burglary. Here the statute is different. Section 775.087(2) provides in pertinent part: "Any person who is convicted of: ......

...Bradley argues that because the information charging him with robbery did not allege that he discharged a firearm during the commission of the offense, the trial court erred when it imposed the twenty-year firearm mandatory minimum prison term pursuant to section 775.087(2), Florida Statutes (2002)....

...Bradley was charged by information with robbery with a firearm in violation of sections 812.13(1) and (2)(a), Florida Statutes (2002). The information included an allegation that in the course of committing the robbery, Mr. Bradley "was in possession of and carried a firearm," and cited section 775.087(2), Florida Statutes (2002)....

...But as it stands now[,] he's got to do 20 years. The State agreed that the plea agreement was as represented and Mr. Bradley then entered his plea, stipulating to the facts alleged in the complaint affidavit (which stated that he had discharged a firearm during the commission of the robbery). Section 775.087, Florida Statutes, commonly referred to as the 10/20/life statute, requires the imposition of a minimum mandatory sentence of ten years of imprisonment for possessing a firearm, twenty years imprisonment for discharging a firearm, and twenty-five years to life for causing death or great bodily harm resulting from the discharge of a firearm, during one of the felonies enumerated in the statute. See § 775.087(2)(a)1.-3., Fla....

...any time. A claim that a mandatory minimum sentence was illegally imposed is cognizable in a rule 3.800(a) motion where the error is apparent on the face of the record. See Leath v. State, 805 So.2d 956, 957 (Fla. 2d DCA 2001). [2] In relevant part, section 775.087(2)(a)1.-3., Florida Statutes, provides: (2) (a) 1....

...gree felony, pursuant to sections 812.13 and 777.04, Florida Statutes. However, citing "deadly weapon" as the reason, the scoresheet reflects that the attempted first-degree murder conviction was reclassified as a life felony, presumably pursuant to section 775.087(1), Florida Statutes. The scoresheet also reflects that the attempted armed robbery count was reclassified as a first-degree felony with "aggravated battery" cited as the reason. Section 775.087(1) provides: Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such felony the defendant carries...

...he commission of such felony the defendant commits an aggravated battery, the felony for which the person is charged shall be reclassified... . (Emphasis supplied.) As the state concedes, reclassification of the attempted armed robbery offense under section 775.087(1) was improper since that offense is a felony in which the use of a weapon is an essential element. See Gonzalez v. State, 585 So.2d 932 (Fla. 1991). Attempted first degree murder is not an offense in which use of a weapon is an essential element. Thus, that offense is subject to reclassification pursuant to section 775.087(1) under appropriate circumstances....

...However, the verdict form contained no specific jury finding that appellant used a deadly weapon or committed an aggravated battery during the commission of attempted first-degree murder. The pivotal question to be determined is whether the application of the reclassification mandate of section 775.087(1) is precluded due to the absence of that particular jury finding....

...Overfelt, 457 So.2d 1385 (Fla. 1984), the court agreed with the Fourth District Court of Appeal's holding: `that before a trial court may enhance a defendant's sentence or apply the mandatory *1313 minimum sentence for use of a firearm [pursuant to section 775.087, Florida Statutes], the jury must make a finding that the defendant committed the crime while using a firearm either by finding him guilty of a crime which involves a firearm or by answering a specific question of a special verdict form so indicating.' The court also cited Hough v....

...n to be the finder of fact with regard to matters concerning the criminal episode. To allow a judge to find that an accused actually possessed a firearm when committing a felony in order to apply the enhancement or mandatory sentencing provisions of section 775.087 would be an invasion of the jury's historical function and could lead to a miscarriage of justice in cases such as this where the defendant was charged with but not convicted of a crime involving a firearm. See also Chapman v. State, 597 So.2d 431 (Fla. 2nd DCA 1992) and Alejo v. State, 483 So.2d 117 (Fla. 2nd DCA 1986), in which the court found error in the reclassification of offenses under section 775.087(1) in the absence of the requisite specific jury finding....

...VERDICT FORM THAT THE DEFENDANT EITHER CARRIED, DISPLAYED, USED, ETC. ANY WEAPON OR FIREARM OR THAT HE COMMITTED AN AGGRAVATED BATTERY DURING THE COMMISSION OF THE FELONY SUBJECT TO BEING RECLASSIFIED PRECLUDE EXECUTION OF THE MANDATORY LANGUAGE OF 775.087(1) WHICH REQUIRES THE RECLASSIFICATION OF OFFENSES UNDER CERTAIN CIRCUMSTANCES? SMITH, J., concurs....

...The defendant was charged with attempted second-degree murder with the use of a firearm. Because the defendant had discharged a firearm, both attempted second-degree murder with a firearm and attempted aggravated battery with a firearm carried a twenty-year minimum mandatory sentence under section 775.087(2)(a)(2), Florida Statutes (2004)....

...egree felony punishable up to five years incarceration. Attempted second degree murder is a second degree felony punishable up to fifteen years incarceration. The use of a firearm during the commission of an attempted aggravated battery, pursuant to section 775.087(2)(a), Florida Statutes, reclassified this third degree felony to a second degree felony, punishable up to fifteen years incarceration, while the same statute reclassifies the attempted second degree murder to a first degree felony punishable up to thirty years. See Nesbitt v. State, 889 So.2d 801, 803 (Fla.2004). Thus, even with the imposition of a twenty-year minimum mandatory sentence under section 775.087(1), pursuant to the 10/20/Life Act, attempted second degree murder, which carries a thirty year sentence, would provide a greater punishment than that of the attempted aggravated battery....

...of attempted second-degree murder in this case. Blandin's charge of attempted second-degree murder of a law enforcement officer with a firearm is a first-degree felony punishable by up to thirty years' imprisonment. See §§ 775.082(3)(b), 775.0823, 775.087(1)(b), 777.04(4)(c), 782.04(2), Fla....

...Wilson, Assistant Public Defender, Bartow, for Appellant. Richard E. Doran, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee. SILBERMAN, Judge. Kenneth Pitts appeals the three-year minimum mandatory sentence imposed under section 775.087(2)(a)(1), Florida Statutes (2000), following his conviction for possession of a firearm by a convicted felon. Pitts claims that the trial court could not impose the minimum mandatory because he had not been charged with possession of a firearm by a felon under section 775.087(2)(a), but rather, he was charged with possession of a firearm by a convicted felon under section 790.23, Florida Statutes (2000)....

...for the charged offense, or they penalize the same offense and the rule of lenity requires the minimum mandatory not be imposed. In Bundrage v. State, 814 So.2d 1133, 1134 (Fla. 2d DCA 2002), this court rejected the same arguments and concluded that section 775.087(2)(a)(1) is a sentencing enhancement statute and does not create a new offense. Bundrage noted that a defendant does not have to be charged under section 775.087(2)(a)(1) in order for the enhancement to apply. Id. at 1135 n. 1. However, the jury did not make a finding that Pitts actually possessed, as opposed to constructively possessed, a firearm. Such a finding is necessary under section 775.087(2)(a)(1) for application of the enhancement. See Bundrage, 814 So.2d at 1135. Accordingly, we reverse and remand for resentencing without application of the three-year minimum mandatory under section 775.087(2)(a)(1)....

...ences imposed on the defendant exceeded the otherwise applicable statutory maximum. Whalen, 895 So.2d at 1224, made reference to Bryant v. State, 744 So.2d 1225 (Fla. 4th DCA 1999), which held that imposition of a 3-year mandatory minimum term under section 775.087(2), Florida Statutes (1997), for use of a firearm was improper because the information did not allege that the charged offense was committed with a firearm. By referring to Bryant, Whalen arguably suggests that the assessment of victim injury points is always analogous to the imposition of a minimum mandatory sentence under section 775.087(2). But we do not adopt that view of Whalen. The factors relevant to sentencing under various versions of section 775.087(2) have been treated as "essential elements." Jackson v. State, 852 So.2d 941, 943 (Fla. 4th DCA 2003); see also Davis v. State, 884 So.2d 1058, 1060 (Fla. 2d DCA 2004) ("[T]he minimum terms mandated by the '10-20-Life' Statute, section 775.087(2), cannot be legally *336 imposed unless the statutory elements are precisely charged in the information.")....

...[2] To the extent that the reasoning of Apprendi is applied in determining what a charging document must allege, the Apprendi exception for the defendant's prior convictions must also be kept in view. [3] To the extent that the Florida case law requires that the factual basis for imposition of a mandatory minimum term under section 775.087(2) always be charged and found by the jury, it reflects a judicial conclusion that the legislature intended the factors requiring imposition of a mandatory minimum under section 775.087(2) to be essential elements....

...d (3) aggravated assault, 5 years, 3 years minimum mandatory. In sum, Sousa received a total of 105 years in prison, with a minimum mandatory sentence of 53 years. He received the minimum mandatory sentences pursuant to the enhancement provisions of section 775.087, Florida Statutes (1999), because he used a firearm during the commission of these offenses. Section 775.087 also contains language that led the trial court to impose the sentences consecutively. We disagree that the language in section 775.087 allows consecutive sentences under these circumstances. Section 775.087(2)(d) reads: It is the intent of the Legislature that offenders who actually possess, carry, display, use, threaten to use, or attempt to use firearms or destructive devices be punished to the fullest extent of the law, and the minimu...

...ffense. Sousa argues that despite the above language, the trial court was prohibited from imposing consecutive sentences. We agree based on the analysis in Mondesir v. State, 814 So.2d 1172 (Fla. 3d DCA 2002). Mondesir held that the last sentence of section 775.087(2)(d) means that sentences received pursuant to section 775.087(2)(d) must only be consecutive to other felony sentences not subject to section 775.087(2)(d)....

...hen he committed four new crimes during which he used a firearm. Following trial, his probation was revoked and he was sentenced on the cocaine charge to a concurrent sentence with the four new firearm offenses that were subject to the provisions of section 775.087. The defendant appealed an evidentiary issue, and the State cross-appealed the concurrent sentences. The State argued that the plain language of section 775.087 required consecutive sentences for each of the new firearm offenses and that the four *540 new firearm offenses should be consecutive to the cocaine offense. The Third District partially disagreed and held that section 775.087 required that only the new firearm offenses be served consecutive to the cocaine offense, while the new firearm offenses were to be served concurrently with each other....

...The court reasoned as follows: Merely on the face of the statute, the reference to "any other" felony refers, as in this case, only to another separate crime, rather than those involved in a single prosecution. In the comments to its Final Analysis of CS/CS/HB 113 (SB 194), which became Chapter 99-12, Laws of Florida, and subsection 775.087(2), the Committee on Crime and Punishment in the House of Representatives so stated: Consecutive Sentences The bill provides that the Legislature intends for the new minimum mandatory sentences to be imposed for each qualifying count,...

...Third District used it to support its conclusion that the "any other" language only refers to crimes that took place at a different time, [1] i.e., the cocaine offense, and that when sentencing multiple offenses from the same criminal episode under section 775.087, the sentences should run concurrently....

...And he was not found by the jury to be guilty of the hate crime." The reference to the hate crime statute appears to be a clerical error. B. WHETHER THE TRIAL COURT ERRED IN IMPOSING THE MINIMUM MANDATORY THREE YEAR SENTENCE FOR USE OF THE FIREARM, PURSUANT TO SECTION 775.087(1), FLORIDA STATUTES (1997)....

...Appellants remaining points are either not preserved for appeal or are without merit. AFFIRMED IN PART, REVERSED IN PART AND REMANDED. DAUKSCH and PETERSON, JJ., concur. NOTES [1] § 790.10, Fla. Stat. (1997). [2] § 784.021(1)(a), Fla. Stat. (1997). [3] § 775.085, Fla. Stat. (1997). [4] § 775.087(2), Fla. Stat. (1997). [5] § 775.085, Fla. Stat. (1997). [6] In 1998, the Legislature added mental or physical disability, or advanced age. [7] § 775.087(1), Fla. Stat. (1997). [8] § 775.087(2), Fla....

to impose consecutive sentences pursuant to section 775.087(2)(d), Florida Statutes (2008), which provides:

...llazo v. State, 936 So.2d 782 (Fla. 4th DCA 2006) ( Collazo I ). We reverse for re-sentencing. Appellant was convicted of third-degree murder with a firearm and the trial court imposed a thirty-year mandatory sentence for a first-degree felony under section 775.087(2), Florida Statutes (2004). In Collazo I, this court determined that the trial court erroneously reclassified appellant's offense as a first-degree felony under section 775.087(1) and remanded for the trial court to properly classify the conviction as a second-degree felony and to re-sentence appellant based on section 775.087(2)(a)3....

...This court held: Notwithstanding that the trial court in this case imposed the thirty year sentence based on the erroneous reclassification of the conviction to a first-degree felony, we recognize that this sentence would have also been appropriate under section 775.087(2)(a)3., as a permissible discretionary sentence between twenty-five years to life....

...Upon re-sentencing, the trial court properly reclassified appellant's conviction as a second-degree felony and sentenced appellant to thirty years with a mandatory minimum of thirty years. At the hearing, appellant's counsel objected to this mandatory minimum for a second degree felony under section 775.087, arguing that it could not exceed twenty-five years because the sentence already exceeded the statutory maximum of fifteen years for a second-degree felony. We agree and hereby recede from the above quoted language of this court's opinion in Collazo I. Section 775.087, Florida Statutes (2004), provides in pertinent part: (2)(a)1....

...horized by s. 775.082, s. 775.084, or the Criminal Punishment Code under chapter 921, then the sentence imposed by the court must include the mandatory minimum term of imprisonment as required in this section. This court explained the application of section 775.087 in Inmon v. State, 932 So.2d 518 (Fla. 4th DCA 2006), as follows: Section 775.087 is a comprehensive sentencing enactment on the subject of weapons involved in the commission of felonies and certain resulting enhancements depending on the specific role of the firearm in the offense. The first subdivision addresses the "presence" of a firearm in all felonies. § 775.087(1), Fla....

...It applies to the possession, use, display, threat to use and actual use of a firearm in any felony. Id. If a firearm is present in the commission of any felony, the offense is stepped up a single grade (e.g., a first degree felony becomes a life felony, and so on). Id. Section 775.087(2), the second subdivision of this statute (the one involved in this case), addresses distinctly different applications of a firearm but only in the commission of several enumerated violent or serious felonies. Subsection (2) has several parts, each subdivided from the others for ease of reference. One of them makes the actual possession of a firearm subject to a minimum mandatory enhancement period of 10 years. § 775.087(2)(a)1, Fla. Stat. (2005). Another makes the actual discharge of the firearm subject to a minimum mandatory enhancement period of 20 years. § 775.087(2)(a)2, Fla. Stat. (2005). Still another makes the actual discharge of a firearm resulting in death or great bodily harm subject to a minimum mandatory enhancement period of not less than 25 years up to a maximum of life in prison. § 775.087(2)(a)3, Fla. Stat. (2005). In addition to the specified enhancements, section 775.087(2) makes clear that the imposition of the minimum mandatory provisions does not prevent even longer sentences within the statutory maximums. § 775.087(2)(b), Fla....

...atory. Id. at 519-20. Appellant's conviction was based upon his discharge of a firearm which resulted in the victim's death. He was convicted of a second degree felony and under section 775.082(3)(c), the statutory maximum sentence is fifteen years. Section 775.087(2)(a)3, which is applicable to appellant, subjects him to a minimum mandatory enhancement of twenty-five years to life. However, because the statutory maximum applicable to appellant is less than the minimum mandatory of twenty-five years, the court may only impose that minimum mandatory. § 775.087(2)(c), Fla....

...MAY, J., concurs specially with opinion, in which GROSS, J., concurs. FARMER, J., dissents with opinion, in which GUNTHER and POLEN, JJ., concur. MAY, J., concurring specially. I concur in the en banc decision. I write simply to call attention to what I perceive is an ambiguous provision within section 775.087, Florida Statutes (2006). The statute provides that "offenders who actually possess, carry, display, use, threaten to use, or attempt to use firearms or destructive devices be punished to the fullest extent of the law." § 775.087(2)(d) (emphasis added)....

...To that end, subsection (2)(b) provides that subparagraphs (a)1., (a)2. and (a)3. do "not prevent a court from imposing a longer sentence of incarceration as authorized by law in addition to the minimum mandatory sentence, or from imposing a sentence of death pursuant to other applicable law." § 775.087(2)(b) (emphasis added)....

...In this case, the defendant was convicted of third degree murder, a second degree felony offense, carrying a maximum penalty of 15 years. § 775.082(3)(c), Fla. Stat. (2006). The jury found that the defendant discharged a firearm in the commission of the offense. Section 775.087(2)(a)3....

...the minimum mandatory terms of imprisonment imposed pursuant to this section exceed the maximum sentences authorized by s. 775.082, s. 775.084, or the Criminal Punishment Code under chapter 921, then the mandatory minimum sentence must be imposed." § 775.087(2)(c) (emphasis added)....

...ntence the defendant anywhere from 25 years to life as long as the mandatory minimum of 25 years is imposed. In short, I find subsection (2)(c) susceptible of more than one meaning, especially in light of the express intent of the legislature. Here, section 775.087(2)(a)3....

...2d DCA 2003) (en banc). Either way, the defendant wins. For this reason, I concur. GROSS, J., concurs. FARMER, J., dissenting. This sentencing statute [1] is not ambiguous. Its plain text supports the trial court's imposition of a 30-year mandatory sentence. Nothing in section 775.087(2) or Inmon v....

...The ordinary penalty for this second-degree felony is 15 years. See § 775.082(3)(c), Fla. Stat. (2005). As the majority opinion indicates, the propriety of the trial court's mandatory 30-year sentence for a killing by gunshot during a felony turns on the text of two subsections from section 775.087(2)....

...onment of life in prison. . . . [(c)] If the minimum mandatory terms of imprisonment imposed pursuant to this section exceed the maximum sentences authorized by s. 775.082, s. 775.084 . . . then the mandatory minimum sentence must be imposed. [e.s.] § 775.087, Fla....

...Perhaps therein lies deterrence; surely there is punishment. If this defendant ends up with a mandatory period less than life for his crime-related killing by gun, he owes it to the leniency of the sentencing judge. I would affirm the sentence imposed. GUNTHER and POLEN, JJ., concur. NOTES [1] § 775.087(2), Fla....

...victim injury points. Addressing these matters seriatim, under the provisions of sections 777.04(4)(a) and 782.04(1)(a), Florida Statutes, attempted first degree murder is a first degree felony, which is reclassified to a life felony by operation of section 775.087(1)(a), Florida Statutes, if a firearm is used in commission of the attempted murder....

...During the course of the beating, the gun discharged and a bullet lodged in the wall. We conclude that even though the gun was not used to shoot the victim, the record evidence in this case established that the gun was a "deadly weapon" for purposes of enhancement under section 775.087(1)(a)....

...The scoring of attempted first-degree murder as a first-degree felony, rather than as a life felony, was not error. Attempted first-degree murder is a first-degree felony under sections 777.04(4)(a) and 782.04(1)(a), Florida *749 Statutes. The crime may, if the State chooses, be reclassified as a life felony under section 775.087(1)(a), Florida Statutes, for use of a firearm....

...5th DCA 1992) (if in the course of a simple robbery without a weapon, the robber commits an aggravated battery, the robber has committed a second offense for which a second punishment is due, assuming that the State chooses not to enhance the robbery offense under § 775.087, Fla....

...We therefore dismiss the petition for review. Respondent was convicted on two counts of armed robbery. § 812.13(2)(a), Fla. Stat. (1983). In sentencing Brown, the trial court enhanced the sentences from first-degree felonies to life felonies, pursuant to section 775.087(1)(a)....

...y weapon or firearm, or during the commission of such felony the defendant commits an aggravated battery, the felony for which the person is charged shall be reclassified as follows: (a) In the case of a felony of the first degree, to a life felony. § 775.087, Fla....

...Lylen, Assistant Attorney General, Tallahassee, for Appellee. MARSTILLER, J. Michael Flowers appeals his life sentence for aggravated battery with a firearm. [*] He argues the sentence, which includes *1043 a minimum mandatory term of life in prison, is illegal because section 775.087(2)(a)3, Florida Statutes, limits the minimum mandatory period to twenty-five years....

...On Count II, the jury found only that he discharged the firearm during commission of the crime. At sentencing, the trial court deemed Flowers a habitual felony offender. On Count I, the court sentenced him to life imprisonment. It further found the criteria in section 775.087(2)(a)3 satisfied, and imposed a minimum mandatory life sentence. As to Count II, the court determined that section 775.087(2)(a)2 applied, and it sentenced Flowers to twenty years' imprisonment. On appeal, Flowers challenges only the sentence imposed for Count I. The statute the trial court relied on in setting the minimum mandatory portion of Flowers' sentence is section 775.087, commonly known as the 10-20-Life statute....

...790.001 and, as the result of the discharge, death or great bodily harm was inflicted upon any person, the convicted person shall be sentenced to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison. § 775.087(2)(a)3, Fla....

...(emphasis added). Flowers argues this provision only permits a twenty-five-year minimum mandatory sentence. Mendenhall holds otherwise. The question in Mendenhall was whether the trial court could impose a thirty-five-year minimum mandatory sentence under section 775.087(2)(a)3 for attempted second-degree murder with a firearm when the maximum sentence for that offense is thirty years under section 775.082(3)(b)-(c). 48 So.3d at 742. The supreme court concluded first that "the specific provisions of section 775.087(2)(a)(3) prevail over the general provisions of the [sic] 775.082 regarding statutory maximums." 48 So.3d at 748....

...The court then construed the statutory language highlighted supra to mean "the trial court has discretion to impose a mandatory minimum within the range of twenty-five years to life. " 48 So.3d at 750 *1044 (emphasis added). "[W]e conclude that the trial court has discretion under section 775.087(2)(a)(3) to impose a mandatory minimum of twenty-five years to life, even if that mandatory minimum exceeds the statutory maximum provided for in section 775.082." 48 So.3d at 742....

...Accordingly, the court upheld the thirty-five-year minimum mandatory sentence under review. Id. The question in this case simply is whether imposition of a minimum mandatory life term is permissible under the 10-20-Life statute. Applying Mendenhall, the trial court had the discretion under section 775.087(2)(a)3 to impose a minimum mandatory term anywhere within the range of twenty-five years to life in prison....

...icle as required by the robbery statute. The Legislature is free, of course, to amend the robbery statute to include the use of a deadly weapon, should it choose to do so. To some extent, that may be unnecessary because the State could proceed under section 775.087, Florida Statutes (2001), which enhances by one degree, any felony when the offender carries, displays, or uses any weapon or firearm, except for *1038 felonies in which the use of a weapon or firearm is an essential element....

...per construction ... means simply that a deadly weapon is one capable of being picked up and physically carried during its use in the course of a robbery." Nation, 668 So.2d at 287 (Ervin, J. concurring). [4] In observing the possible application of section 775.087 to the instant case, we do not address the implications, if any, of the Supreme Court's holding in Apprendi v....

...The lower court, however, stated that it would not impose the three year minimum mandatory sentence because the defendant was "detained for a traffic offense, playing loud music, . . . and his tag wasn't too good." The State has appealed and seeks imposition of the three-year minimum mandatory *350 sentence pursuant to section 775.087(2)(a)(1)r., Florida Statutes (2005)....

...structive. See Wilcox v. State, 522 So.2d 1062 (Fla. 3d DCA 1988). Neither party here disputes that Mulus satisfied this statute's requisites for constructive possession of a weapon. The difficulty arose when the state asked the trial court to apply section 775.087(2)(a)(1)r., Florida Statutes (2005), which provides that a person convicted of, among other offenses, possession of a firearm by a convicted felon, must be sentenced to a three-year minimum mandatory term of imprisonment....

...5th DCA 2003)(actual possession for the purposes of sentence enhancement means "carried on his person."). The definition in subsection (4) is not applicable to the merely possessory offense charged here, as again, "intent to use . . . during *351 the commission" of an offense must be proven beyond a reasonable doubt. § 775.087(4), Fla....

...ctual possession. The State did not charge Mulus with actual possession, nor did it establish a factual basis for actual possession or constructive possession with intent to commit an offense. The three-year minimum mandatory enhancement pursuant to section 775.087(2)(a)(1)r., Florida Statutes (2005) is not applicable to these facts, and we must affirm....

...We certify that we have passed on the following question of great public importance: WHETHER THE SOLE METHOD FOR IMPOSING A THREE-YEAR MANDATORY MINIMUM SENTENCE FOR POSSESSION OF A FIREARM BY A CONVICTED FELON IS TO ESTABLISH THAT THE DEFENDANT CARRIED THE FIREARM "ON THE PERSON" AS PROVIDED BY SUBSECTION 775.087(4), FLORIDA STATUTES (2005)? We also certify direct conflict with Cook v....

...ive years' imprisonment with twenty-year minimum mandatory terms for discharging a firearm. The appellant asserts that his twenty-year minimum mandatory sentence for count four is illegal because he was not charged with "discharging" a firearm under section 775.087(2)(a)2., Fla. Stat. (2002). Rather, the appellant was charged with "possession" of a firearm in count four, which carries a minimum mandatory term of only ten years' imprisonment under section 775.087(2)(a)1....

...Further, the state cannot use the allegation of discharge of a firearm in one count to support the enhancement of another count. Gibbs, 623 So. 2d at 555. Accordingly, we reverse and remand for the trial court to resentence the appellant on count four in accordance with section 775.087(2)(a)1....

...Fortunately, the bullet passed through the bouncer's leg without causing a fatal injury. The State charged Mr. Sanders with attempted first-degree murder. Because the State maintained that he discharged a firearm and inflicted great bodily harm, it sought to reclassify the felony and impose an enhanced penalty under section 775.087, Florida Statutes (2002), which is commonly referred to as the 10-20-life statute....

...The opinion does not explain the verdict form in detail, but the discussion in Judge Stone's dissent suggests that the verdict form was somewhat similar to the verdict form used in this case. In Franklin, the main offense was a first-degree felony. See §§ 782.04(2), 777.04(4)(c), 775.087(1)(b), Fla....

...See §§ 782.04(2), 777.04(4)(c). The trial court in Franklin then instructed the jury on the "lesser" offense of aggravated battery while discharging a firearm and inflicting great bodily harm. This offense is a first-degree felony. [3] See §§ 784.05(2), 775.087(1)(b), Fla....

...The offense in Ray occurred in 1975 when the law of sentencing was far simpler and when the concepts of "degree and penalty" were very intertwined. On the other hand, in 1975 the concepts of reclassification for use of a firearm and enhancement of sentence as a habitual offender already existed. See §§ 775.087, .084, Fla....

...The defendant is guilty of Attempted First-Degree Murder, with a Firearm (Discharging Firearm and Inflicting Great Bodily Harm), as charged. Degree of Felony: Life Felony. Maximum penalty with mandatory 10-20-life enhancement because a firearm was utilized during the crime: Life imprisonment. §§ 782.04(1)(a); 777.04(4)(b); 775.087(1)(a); 775.082(3)(a)(3). Minimum mandatory under 10-20-life for discharging a firearm during the offense and causing great bodily harm: not less than 25 years' imprisonment, not more than life. § 775.087(2)(a)(3)....

...The defendant is guilty of Attempted First-Degree Murder, with a Firearm (Discharging Firearm). Degree of Felony: Life Felony. Maximum penalty with mandatory 10-20-life enhancement because a firearm was utilized during the crime: Life imprisonment. §§ 782.04(1)(a); *1292 777.04(4)(b); 775.087(1)(a); 775.082(3)(a)(3). Minimum mandatory under 10-20-life for discharging a firearm during the offense: 20 years' imprisonment. § 775.087(2)(a)(2)....

...The defendant is guilty of Attempted First-Degree Murder, with a Firearm (Possessing Firearm). Degree of Felony: Life Felony. Maximum penalty with mandatory 10-20-life enhancement because a firearm was utilized during the crime: Life imprisonment. §§ 782.04(1)(a); 777.04(4)(b); 775.087(1)(a); 775.082(3)(a)(3). Minimum Mandatory under 10-20-life for possessing a firearm during the offense: 10 years' imprisonment. § 775.087(2)(a)(1)....

...The defendant is guilty of Attempted Second-Degree Murder, with a Firearm (Discharging Firearm and Inflicting Great Bodily Harm). Degree of Felony: First Degree. Maximum penalty with 10-20-life enhancement because a firearm was utilized during the crime: 30 years' imprisonment. §§ 782.04(2); 777.04(4)(c); 775.087(1)(b); 775.082(3)(b). Minimum Mandatory under 10-20-life for discharging a firearm during the offense and causing great bodily harm: not less than 25 years' imprisonment, not more than life. § 775.087(2)(a)(3)....

...The defendant is guilty of Attempted Second-Degree Murder, with a Firearm (Discharging Firearm). Degree of Felony: First Degree. Maximum penalty with 10-20-life enhancement because a firearm was utilized during the crime: 30 years' imprisonment. §§ 782.04(2); 777.04(4)(c); 775.087(1)(b); 775.082(3)(b). Minimum Mandatory under 10-20-life for discharging a firearm during the offense: 20 years' imprisonment. § 775.087(2)(a)(2)....

...The defendant is guilty of Attempted Second-Degree Murder, with a Firearm (Possessing Firearm). Degree of Felony: First Degree. Maximum penalty with 10-20-life enhancement because a firearm was utilized during the crime: 30 years' imprisonment. §§ 782.04(2); 777.04(4)(c); 775.087(1)(b); 775.082(3)(b). Minimum Mandatory under 10-20-life for possessing a firearm during the offense: 10 years' imprisonment. § 775.087(2)(a)(1)....

...The defendant is guilty of Attempted Voluntary Manslaughter, with a Firearm. Degree of Felony: Second Degree. Maximum penalty with 10-20-life enhancement because a firearm was utilized during the crime: 15 years' imprisonment. §§ 782.07(1); 777.04(4)(d); 775.087(1)(c); 775.082(3)(c)....

...conviction. The State charged the defendant with burglary with an assault or battery in violation of section 810.02(2)(a), Florida Statutes (1993), and that in committing the offense he carried or used a weapon, namely, a tire iron, in violation of section 775.087, Florida Statutes (1993). This offense was classified on the judgment as a first degree felony. Defendant was adjudicated as an HVFO on this count. Because the State charged only an assault and battery under the burglary statute, and charged the use of the weapon under section 775.087, enhancement of the conviction was permitted....

...3d DCA 1996); see also Lareau v. State, 573 So.2d 813, 814-15 (Fla.1991). This means that the burglary, which is a first degree felony punishable by life imprisonment, see § 810.02(2)(a), Fla. Stat. (1993), was enhanced to a life felony because of section 775.087....

Florida Statutes (1998), with no mention of section 775.087, Florida Statutes (1998). Figueroa does not

be of great public importance: Does section 775.087(2)(d)’s statement that “The court shall impose

...Critical to the court's belief that resentencing was necessary seems to be its conclusion that failure to sentence Mr. Gardner to the ten-year minimum mandatory sentence would result in an automatic reversal on appeal by the State. That conclusion is well-supported. See § 775.087(2)(b), (d), Fla....

...he legislative intent that "the minimum terms of imprisonment imposed pursuant to this subsection shall be imposed for each qualifying felony count for which the person is convicted"); State v. Calzada-Padron, 708 So.2d 287, 287 (Fla. 2d DCA 1996) ("Section 775.087(2) contains no provision permitting the trial court to exercise its discretion in imposing a ......

*3charges, both to run concurrently. Pursuant to section 775.087(2)(a), Florida Statutes (the “10-20-Life statute”)

...On September 28, 1993, appellant knocked his victim from her bicycle and carried her into nearby woods where he beat and raped her. He was charged with and convicted of kidnapping during which an aggravated battery was committed, contrary to sections 787.01(2) and 775.087(1)(a), Florida Statutes, sexual battery, and aggravated battery. On *41 appeal, appellant raises two double jeopardy claims. Because one of these claims is valid, we reverse appellant's separate conviction for aggravated battery. Section 775.087(1)(a), Florida Statutes, provides for re-classification of a felony from a first degree felony to a life felony, if "during the commission of such felony the defendant commits an aggravated battery." Appellant was convicted of kidnapping and of committing an aggravated battery during the commission of this felony in violation of section 775.087(1), and his kidnapping offense was re-classified as a life felony....

...the other does not, without regard to the accusatory pleading or the proof adduced at trial." § 775.021(4)(a), Fla. Stat. See Brown v. State, 617 So.2d 744 (Fla. 1st DCA 1993), aff'd, State v. Brown, 633 So.2d 1059 (Fla. 1994). In the instant case, section 775.087(1) requires proof of a felony in which the use of a weapon or firearm is not an essential element and an aggravated battery to re-classify the felony....

...the judgment. The judgment, sentence, and sentencing scoresheet should clearly reflect that appellant was not only convicted of kidnapping to facilitate a felony under section 787.01, Florida Statutes, but also of aggravated battery in violation of section 775.087, which re-classified the kidnapping as a life felony....

...unts of attempted murder of a law enforcement officer. The State argues that the trial court erred by imposing downward departure sentences and by failing to apply the twenty-year minimum mandatory prison sentence required by the 10/20/Life statute, section 775.087(2), Florida Statutes (2005)....

...The information, charging Vanderhoff with three counts of attempted first-degree murder of a law enforcement officer, alleged that he possessed and discharged a firearm in the course of committing the crimes. As a result, the twenty-year minimum mandatory provision of section 775.087(2) was implicated....

...Sir, your plea is accepted.... (Emphasis added). Despite the State's earlier advice to the contrary, at the sentencing hearing held several weeks later, the State informed the trial court that it was required to impose the twenty-year minimum mandatory sentence mandated by section 775.087(2)....

...And then if you violate it, you are going to end up in prison more than likely. You are still facing a prison sentence of up to 10/20/Life sentence. (Emphasis added). The State again objected to the trial court's failure to impose the twenty-year minimum mandatory sentence required by section 775.087, Florida Statutes, and this appeal followed. Because Vanderhoff discharged a firearm in the commission of the attempted murders, section 775.087(2)(a)2., Florida Statutes (2005), required the trial court to impose a twenty-year mandatory minimum sentence on each count. Arutyunyan v. State, 863 So.2d 410, 412 (Fla. 4th DCA 2003); see § 775.087(2)(c), Fla....

...(2005) ("If the minimum mandatory terms of imprisonment imposed pursuant to this section exceed the maximum sentences authorized by s. 775.082, s. 775.084, or the Criminal Punishment Code under chapter 921, then the mandatory minimum sentence must be imposed ...."); § 775.087(2)(d), Fla....

...(2005) ("It is the *1189 intent of the Legislature that offenders who actually possess, carry, display, use, threaten to use, or attempt to use firearms... be punished to the fullest extent of the law ...."); see generally State v. Calzada-Padron, 708 So.2d 287, 287 (Fla. 2d DCA 1996) (recognizing that section 775.087 contains no provision permitting trial court to exercise discretion in imposing three-year minimum mandatory prison sentence once defendant has been convicted of certain enumerated felonies). The 10/20/Life statute, section 775.087(2), Florida Statutes (2005), removed most sentencing discretion from the judicial branch, and instead, placed it in the executive branch by establishing a mandatory minimum sentencing scheme. See Green v. State, 792 So.2d 643 (Fla. 1st DCA 2001); see also § 775.087(2), Fla....

...re under the Criminal Punishment Code, could also allow the trial court to waive a minimum mandatory sentence. [1] This is error, as only the State Attorney has the discretion to waive the minimum mandatory sentence implicated here. See §§ 27.366, 775.087(5), Fla....

...We reverse the sentences imposed and remand this matter for further proceedings consistent with this opinion. REVERSED and REMANDED. PALMER, C.J. and LAWSON, J., concur. NOTES [1] Because we conclude that the trial court's failure to impose the minimum mandatory sentence required by section 775.087(3) is dispositive, we do not consider the downward departure from the sentencing guidelines.

...n to be the finder of fact with regard to matters concerning the criminal episode. To allow a judge to find that an accused actually possessed a firearm when committing a felony in order to apply the enhancement or mandatory sentencing provisions of section 775.087 would be an invasion of the jury's historical function and could lead to a miscarriage of justice in cases such as this where the defendant was charged with but not convicted of a crime involving a firearm." [emphasis supplied]....

...On these charges the jury found him guilty of the lesser included offenses of attempted third-degree murder on one count and aggravated *1012 assault on the other. The trial judge reclassified the crime of attempted third-degree murder as a felony of the third degree, relying upon section 775.087(1), which authorizes the reclassification of the degree of a felony whenever the defendant in committing the felony carries, displays, uses, threatens, or attempts to use any weapon or firearm. The court also applied the three year mandatory sentencing provision of section 775.087(2)." 457 So.2d at 1386....

...actually possesses a weapon during the commission of a crime, defense counsel at trial moved for a judgment of acquittal. The trial court denied the motion and Parker's conviction was enhanced from a first-degree felony to a life felony, pursuant to section 775.087(1)(a), Florida Statutes (2001), for carrying a weapon during the robbery....

...State, 842 So.2d 130 (Fla. 5th DCA 2003). Accordingly, we grant the petition. A copy of this opinion shall be filed with the trial court and treated as the notice of appeal. GRANT BELATED APPEAL. SHARP, W., and ORFINGER, JJ., concur. NOTES [1] §§ 812.13(1), 812.135 and 775.087(1)(a), Fla....

...left certain boxes on the verdict form blank. The jury had not indicated in any way whether or not they had concluded that appellant had used a firearm in committing the crime. Attempted manslaughter with a firearm is a felony of the second degree, § 775.087(1), Fla....

...2d DCA 1993), *312 which we need not address in light of disposition on other grounds. We reverse and remand with directions that appellant be adjudicated guilty of attempted manslaughter and resentenced in accordance with section 775.082, Florida Statutes (1991), without reference to section 775.087, Florida Statutes (1991)....

...ALDERMAN, Judge. The defendant entered a plea of nolo contendere to the charge of manslaughter, reserving the right to appeal the denial of her motion to suppress confession, and the question whether a minimum three-year mandatory sentence pursuant to Section 775.087(2), Florida Statutes (1975), is required for the crime of manslaughter....

...The trial court adjudged the defendant guilty and sentenced her to serve seven years, but stayed four years of the sentence and placed the defendant on probation for the remainder of the term. The sentence included the words, "mandatory minimum 3 yr. sentence, F.S. 775.087(2)"....

...ney present during questioning, even though these rights were not given verbatim as set forth in Miranda. State v. Craig, 237 So.2d 737 (Fla. 1970); Alvord v. State, 322 So.2d 533 (Fla. 1975). The next issue is whether manslaughter is included under Section 775.087(2), which prescribes a mandatory minimum three years' imprisonment before the defendant is eligible for parole for certain enumerated crimes if the perpetrator had a firearm in his possession. We have previously held that if a defendant is not convicted of one of the crimes set forth in Section 775.087(2), he may not be sentenced under this statute....

...There is a logical reason not to include manslaughter within the category of "any murder". Manslaughter includes killing by "culpable negligence", which does not require intent. Section 782.02, Florida Statutes (1975). Although crimes with less serious consequences than death are included in Section 775.087(2), they are crimes which include the element of intent....

...t favorably to the accused. Section 775.021(1), Florida Statutes (1975); see also State v. Buchanan, 191 So.2d 33 (Fla. 1966). We hold that manslaughter, the offense for which appellant was convicted, is not included in the enumerated offenses under Section 775.087(2)....

...ter is fifteen years. Nor did the sentence violate the terms of the negotiated plea, that the court sentence the defendant to a minimum of three years but no more than seven. The only error in the sentence is that the trial court erroneously invoked Section 775.087(2)....

...Appellee submits that the court misconstrued its position when we said that "it *6 contends that since manslaughter is a lesser included crime of murder, it is included." The State says that it made no such contention and acknowledges that just because a crime is a lesser included offense of one of the crimes enumerated in Section 775.087(2), does not and cannot raise the magnitude of that crime to the level of one that is included under that statute. The State concedes that a conviction of such lesser included offense would not require the minimum three-year mandatory sentence. The State argues, however, if a crime enumerated in Section 775.087(2) is a lesser included offense of manslaughter, then manslaughter is included with the provisions of that statute....

...In the present case, the State contends that the defendant, having been adjudged guilty of manslaughter, is also guilty of aggravated assault, a necessarily included lesser offense of the crime of manslaughter. It concludes, since aggravated assault is one of the enumerated crimes in Section 775.087(2), that the minimum three-year mandatory sentence is applicable to a manslaughter conviction. We reject this contention. If the legislature had intended to include manslaughter in Section 775.087(2), it would have been a simple matter for it to include this offense among those enumerated....

...On appeal, he contends that the fifty year sentence exceeds the statutory penalty. We agree. Attempted second degree murder is a second degree felony. See §§ 782.04(2), 777.04(4)(c), Fla. Stat. (2006). If the offense is committed with a firearm, the crime is reclassified to a first degree felony pursuant to section 775.087(1)(b), subject to a sentence not to exceed thirty years. See § 775.082(3)(b), Fla. Stat. (2006). Because the jury found that Wooden's discharge of a firearm resulted in great bodily harm, the minimum mandatory range under section 775.087(2)(a)(3) was twenty-five years to life imprisonment....

...However, once the trial court imposed the minimum mandatory sentence of twenty-five years, it could not exceed the thirty year maximum penalty for a first degree felony under section 775.082(3)(b). Brown v. State, 983 So.2d 706 (Fla. 5th DCA 2008). The twenty-five year to life minimum mandatory range under section 775.087(2)(a)(3) does not create a new statutory maximum penalty of life imprisonment....

...granted, 26 So.3d 582 (Fla.2009) does not suggest a different result. In Mendenhall , we approved the imposition of a thirty-five year sentence on a first degree felony where the trial court also imposed a thirty-five year minimum mandatory sentence pursuant to section 775.087(2)(a)(3).

...Consequently, we reject defendant's argument on this issue. Defendant's next issue has merit. Defendant was charged and convicted of burglary with an assault or battery in violation of section 810.02(2)(a), Florida Statutes (1993), while using a weapon, in this case a concrete brick, in violation of section 775.087, Florida Statutes (1993)....

...ony. Here the state elected to charge defendant with burglary with an assault or battery. See § 810.02(2)(a), Fla.Stat. (1993). That offense is a first degree felony punishable by life imprisonment. Id. The effect of the weapon enhancement statute, § 775.087(1), Fla.Stat., is to enhance the offense from a first degree felony to a life felony. Id. § 775.087(1)(a)....

...UPCHURCH, J., concur. NOTES [1] § 775.084, Fla. Stat. (1983). [2] § 810.02(2)(b), Fla. Stat. (1983). [3] § 790.23, Fla. Stat. (1983). [4] The judge did not evidence any intention in departing from the Guidelines. Fla.R.Crim.P. 3.701(d)(11). [5] Compare section 775.087, Florida Statutes (1983), which does reclassify offenses....

...The commission's comment to the committee note, which has not been adopted by the supreme court, originally provided that: The legislature has also provided that enhanced penalties may be imposed under specific circumstances (§ 775.084, Fla. Stat. (1981), habitual offender, § 775.087, Fla....

...Almy-Loewinger, Assistant Public Defender, Daytona Beach, for Appellee/Cross-Appellant. COBB, W., Senior Judge. The State appeals from a sentence [1] arguing that the trial court erred in imposing a sentence which is not in accordance with the 10/20/Life statute, section 775.087(2)(a)3., Florida Statutes....

...inding that he used a firearm and discharged said firearm resulting in death or great bodily harm to the victim. At sentencing, the scoresheet called for a sentencing range of between 51 months and 15 years. The State called the court's attention to section 775.087(2)(c), Florida Statutes (2001), and argued that because the jury made the special finding that the defendant used and discharged a firearm resulting in great bodily harm, the 25 year minimum mandatory of the "10/20/Life" statute must be imposed....

...The trial court disagreed and sentenced the defendant to 15 years imprisonment, the statutory maximum for a second degree felony (§ 775.082(3)(c), Fla. Stat.) consecutive to a sentence imposed in another case, with a three year minimum mandatory. We reverse. Section 775.087(2)(a)3., Florida Statutes (2001), the "10/20/Life" statute, provides that a person convicted of one of the enumerated felonies (which includes aggravated battery) who discharges a firearm during the commission of the felony and as a result of the discharge, death or great bodily harm is inflicted upon any person, shall be sentenced to a minimum term of imprisonment of 25 years to life. Section 775.087(2)(c) specifically provides: If the minimum mandatory terms of imprisonment imposed pursuant to this section exceed the maximum sentences authorized by s....

...um term of imprisonment as required in this section. The State points out that the maximum sentence authorized under the Criminal Punishment Code based on the defendant's scoresheet is 15 years. Since the minimum mandatory term of imprisonment under section 775.087(2)(a)3. was 25 years, the State contends the 25 year sentence had to be imposed. The defendant's position is that several statutes govern sentencing in this case, sections 775.087(2)(a)3., (2)(c) and 775.087(2) and that the trial court correctly read the statutes in pari materia in determining that the "10/20/Life" statute represents the maximum prison time that the defendant could receive for the offense and that the 15 year sentence with the three year minimum mandatory was the minimum prison sentence and so sentenced him....

...1st DCA 2002) (trial court has discretion to sentence defendant as youthful offender rather than under 10/20/Life statute where latter enactment did not contain any language which superseded the Youthful Offender Act). However, the way to do that in the instant case is to give effect to subsections 775.087(2)(a)3....

...The record reflects that the sentencing error was preserved. We also reject the contention that any error, here, was harmless. See Trent v. State, 403 So.2d 1131 (Fla. 4th DCA 1981)(harmless error did not apply where youthful offender was sentenced to a three year minimum term of imprisonment under section 775.087)....

...Troy Thompson appeals his sentences for robbery with a firearm and kidnapping with a firearm that were imposed on resentencing. Because the trial court erred in reclassifying the kidnapping offense and in imposing minimum mandatory sentences pursuant to section 775.087, Florida Statutes (Supp.1996), we reverse and remand for resentencing....

...The verdict form reflects that the jury found Thompson "guilty of Robbery With a Firearm, as charged," and "guilty of Armed Kidnapping with a Firearm, as charged." However, the jury was not asked to determine whether Thompson actually or constructively used or possessed a firearm. Section 775.087 provides: (1) Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such felony the defendant carrie...

...and during the commission of the offense, such person possessed a "firearm" or "destructive device" as those terms are defined in s. 790.001, shall be sentenced to a minimum term of imprisonment of 3 years. The scoresheet used for resentencing reflects that, pursuant to section 775.087(1), the armed kidnapping was reclassified and scored as a level ten, life felony, instead of a level nine, first-degree felony....

...e. Over Thompson's objections, the trial court sentenced Thompson to concurrent sentences of 129.25 months' imprisonment followed by twenty years' probation. Each sentence included *958 a three-year minimum mandatory term of imprisonment pursuant to section 775.087(2)....

...State, 758 So.2d 1157, 1159 (Fla. 2d DCA 2000) (quoting Hargrove, 694 So.2d at 731). Even if an information charges the use of a firearm, a verdict form that simply recites that the defendant is guilty as charged does not support reclassification of the crime under section 775.087(1) because there is no specific jury finding that the defendant used a firearm. See Toro v. State, 691 So.2d 576, 577 (Fla. 2d DCA 1997). Moreover, an "as charged" verdict will not support the imposition of a minimum mandatory sentence under section 775.087(2) when the verdict fails to reflect that the defendant was in actual, as opposed to constructive, possession of a firearm....

...During the robbery, Mary Mullins was shot in the back and robbed, Patricia Crew was robbed, and the restaurant employing them was robbed. We find that the sentences imposed for the two counts, Counts V and VI of the information, were erroneously stacked. Section 775.087(2), Florida Statutes (1996), authorizes imposition of a three-year mandatory minimum term for use of a firearm during the commission of certain crimes including robbery....

...he ten-twenty-life statute. The statute provides in part that there will be a twenty-year mandatory minimum sentence when, in the course of committing an enumerated felony, the defendant "discharged a `firearm' . . . as defined in s. 790.001. . . ." § 775.087(2)(a)2, Fla....

...a firearm by a convicted felon is 30 years in prison as a habitual felony offender. [HILL RESPONDED]: Yes. [THE COURT STATED]: And there is minimum mandatory term of three years in prison under the 10-2-life [sic] statute, that being Florida Statute 775.087....

...Gen., Tallahassee, and Ann M. Childs, Asst. Atty. Gen., Daytona Beach, for appellee. W. SHARP, Judge. Demps appeals from his conviction and sentence for robbery with a firearm. He contends the trial court erred in imposing a three year minimum mandatory sentence pursuant to section 775.087(2), Florida Statutes (1993), because based on this record, it was not established that he had actual physical possession of the gun during the robbery....

...While this evidence is sufficient to convict Demps of armed robbery on the theory he was a principal to the crime, [2] it is not adequate to warrant the imposition of the minimum mandatory sentence. More than vicarious or constructive possession of the firearm is required by section 775.087(2)....

...1993); Earnest v. State, 351 So.2d 957 (Fla. 1977); Poiteer, Freeny; Belcher v. State, 550 So.2d 1185 (Fla. 5th DCA 1989). [3] Accordingly we affirm the conviction and sentence in all respects except the three-year minimum mandatory sentence imposed pursuant to section 775.087(2), which we vacate....

...NOTES [1] § 812.13(2)(a), Fla. Stat. (1993). [2] See Poiteer v. State, 627 So.2d 526 (Fla. 2d DCA 1993); Freeny v. State, 621 So.2d 505 (Fla. 5th DCA 1993). [3] See also State v. Rodriguez, 602 So.2d 1270 (Fla. 1992) (defendant's sentence could not be enhanced under section 775.087(1) where a passenger in the car picked up a gun and shot at police and the defendant did not have actual possession of the weapon); Willingham v....

...State, 541 So.2d 1240 (Fla. 2d DCA), rev. denied, 548 So.2d 663 (Fla. 1989) (where sale of cocaine was completed before the defendant seized a gun and began shooting, he did not carry or use the weapon during commission of the offense and enhancement under section 775.087(1) was not proper.)

...s. On January 11, 1995, in circuit court case 93-887, McDuffie pleaded no contest pursuant to a stipulated upward departure negotiated plea agreement to the lesser offense of second-degree murder with a firearm, a violation of sections 782.04(2) and 775.087, Florida Statutes (1991)....

...782.04 specifically provided that second-degree murder is punishable by imprisonment for a term of years not exceeding life. *100 However, McDuffie pleaded nolo contendere to second-degree murder with a firearm, a violation of sections 782.04(2) and 775.087, Florida Statutes (1991). Pursuant to section 782.04(2), second-degree murder is "a felony of the first degree, punishable by imprisonment for a term of years not exceeding life or as provided in s. 775.082, s. 775.083, or s. 775.084." Section 775.087, Florida Statutes (1991), states: (1) Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such fel...

...State, 931 So.2d 922, 922 (Fla. 2d DCA 2005). If the State does not agree to such a sentence, McDuffie must be allowed to withdraw his plea. See id. The court notes that the trial court also failed to impose the three-year mandatory minimum pursuant to section 775.087(2)(a)(1) when McDuffie was originally sentenced. Whether such a mandatory minimum is required to be imposed on remand is contingent on how the State elects to proceed. Therefore, on remand, *101 the postconviction court shall impose any applicable mandatory minimum pursuant to section 775.087....

...downward departure of 364 days in the county jail. The state filed a timely notice of appeal. The state contends that the trial court erred in failing to impose upon the appellee a three year minimum mandatory prison sentence as required pursuant to section 775.087(2), Florida Statutes (1993). We agree. Section 775.087(2) contains no provision permitting the trial court to exercise its discretion in imposing a three year minimum mandatory prison sentence once a defendant has been convicted of certain enumerated felonies....

...State v. Leatherwood, 561 So.2d 459 (Fla. 2d DCA 1990); State v. Sesler, 386 So.2d 293 (Fla. 2d DCA 1980). Accordingly, we affirm the conviction but reverse the sentence and remand with directions to impose the three year mandatory term required under section 775.087(2)....

...the crime they intended to commit and acted to carry out"). Third, Campbell argues that there was insufficient evidence that he possessed a firearm to reclassify the conspiracy to traffic in cocaine and attempted trafficking in cocaine charges under section 775.087(1), Florida Statutes (2000). [4] We agree. *618 "[W]hen a defendant is charged with a felony involving the `use' of a weapon, his or her sentence cannot be enhanced under section 775.087(1) without evidence establishing that the defendant had personal possession of the weapon during the commission of the felony." State v. Rodriguez, 602 So.2d 1270, 1272 (Fla.1992). The Florida Supreme Court has repeatedly held that "actual physical possession of a weapon during the commission of a crime is required for the offense to be reclassified under section 775.087(1)." Robins v. State, 602 So.2d 1272, 1273 (Fla.1992); see Williams v. State, 622 So.2d 456, 465 (Fla. 1993) ("[i]n order for a defendant's sentence to be enhanced pursuant to section 775.087(1)-(2), Florida Statutes (1991), the State must prove that the defendant had actual physical possession of the weapon")....

...pbell who carried the bag. Because there is no evidence that Campbell had either actual physical or personal possession of a firearm or weapon, the conspiracy to traffic and attempted trafficking in cocaine charges were improperly reclassified under section 775.087(1) and Campbell must be resentenced on these convictions....

...[2] The informant, who had met Campbell in jail, came into contact with Campbell during one of a number of visits to Campbell's mother regarding refinancing of a mortgage that was in default. [3] Each of these meetings and telephone conversations were recorded. The recordings were played for the jury at trial. [4] Section 775.087(1) provides: Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such felony the defendant carries...

...Nancy Daniels, Public Defender, and Carl S. McGinnes, Assistant Public Defender, Tallahassee, for appellant. Robert A. Butterworth, Attorney General, and Robert L. Martin, Assistant Attorney General, Tallahassee, for appellee. PER CURIAM. In this appeal, we are asked to determine whether section 775.087(2)-(7), Florida Statutes (1999), commonly referred to as the "10/20/Life" statute, violates the separation of powers provision set forth in Article II, Section 3 of the Florida Constitution....

...es not eliminate all prosecutorial discretion in seeking enhanced penalties under the statute, but instead clearly contemplates that in some qualifying cases prosecutors will use their discretion not to seek enhanced penalties under the statute. See § 775.087(5), Fla....

...An aggravated battery is ordinarily a second degree felony punishable by a maximum of fifteen years imprisonment. See § 784.045(2), and § 775.082(3)(c), Fla. Stat. However, the appellant's offense was properly reclassified as a first degree felony pursuant to section 775.087(1), Florida Statutes, and was thus punishable by up to thirty years imprisonment. See § 775.082(3)(b), Fla. Stat. Aggravated battery can be committed in alternative ways, such as by causing great bodily harm or by using a deadly weapon. See § 784.045(1), Fla. Stat. As indicated in section 775.087(1), a degree reclassification pertains when the offense is committed with the use of a weapon, unless the use of the weapon is an essential element of the crime. The appellant relies on Cabral v. State, 944 So.2d 1026 (Fla. 1st DCA 2006), where this court was unable to determine whether an aggravated battery conviction was based on great bodily harm or the use of a deadly weapon, and a § 775.087(1) reclassification was therefore precluded....

...ttery here is independently established by the great bodily harm, and the use of a deadly weapon is thus not an essential element of the aggravated battery. Instead, use of the weapon is an additional *855 factor which permits reclassification under § 775.087(1)....

...On each count, Dunbar was sentenced to forty years imprisonment. [2] Attempted second-degree murder is a second-degree felony. See §§ 782.04(2), 777.04(4)(c), Fla. Stat. (2009). If, as in the instant case, the offense is committed with a firearm, the crime is reclassified to a first-degree felony pursuant to section 775.087(1)(b), subject to an enhanced sentence not to exceed thirty years....

...State, 827 So.2d 1052 (Fla. 5th DCA 2002). AFFIRMED. ORFINGER, TORPY and EVANDER, JJ., concur. NOTES [1] Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). [2] The trial court also imposed the mandatory minimum term of twenty years pursuant to section 775.087(2)(a)2., Florida Statutes (2009), for discharge of a firearm.

...Chambers with burglary of a dwelling, aggravated assault of Mr. Blair, and attempted second-degree murder of Ms. Radway. [1] The information charging Mr. Chambers with these offenses alleged that he was armed with a gun and included language to support an enhanced penalty under the 10-20-life statute. See § 775.087(2), Florida Statutes (2002)....

...Chambers possessed a firearm, discharged that firearm, and caused great bodily harm to Ms. Radway while committing that offense. The remaining crimes— felony battery, battery, and assault—are crimes that do not permit enhancement under the 10-20-life statute, see § 775.087(2)(a)(1)(a-r), and thus they appeared on the verdict form without any subheadings....

...The jury convicted Mr. Chambers of aggravated assault and found that he discharged his firearm resulting in great bodily harm to Ms. Radway. For this offense, he was sentenced to twenty-five years' imprisonment, which was the mandatory minimum term pursuant to section 775.087(2)(a)(3)....

...); and § 777.04(4)(c), Fla. Stat. (2002) (providing that an attempt to commit a crime that is a first-degree felony punishable by life imprisonment is classified as a second-degree felony), which is reclassified to a first-degree felony pursuant to section 775.087(1)(b) if the perpetrator commits the crime while in actual possession of a weapon or firearm. In contrast, aggravated assault is a third-degree felony. See § 784.021(2), Fla. Stat. (2002). Section 775.087(2)(a)(3) requires that any person who is convicted of a felony enumerated in section 775.087(2)(a)(1), or of attempting to commit one of those felonies, "and during the course of the commission of the felony such person discharged *449 a `firearm' ....

...and, as the result of the discharge, death or great bodily harm was inflicted upon any person, the convicted person shall be sentenced to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison." The enumerated felonies include murder and aggravated assault. § 775.087(2)(a)(1)(a), (f)....

...As discussed above, if counsel had objected to the inclusion of aggravated assault, that offense would have been omitted and the next listed offense would have been felony battery. [6] To further complicate matters, the mandatory minimum sentences required by the 10-20-life statute do not apply to attempted manslaughter, see § 775.087(2)(a)(1)(a-r) (enumerating offenses to which 10-20-life provisions apply); Murray v....

...State, 491 So.2d 1120, 1123 (Fla.1986) (concluding that statutory provision permitting enhancement for crime of "murder" did not permit enhancement on the crime of manslaughter), although the crime could be reclassified as a second-degree felony based upon the use of a weapon, see § 775.087(1) (permitting reclassification for use of a weapon for any felony in which the use of a weapon or firearm is not an essential element)....

...§§ 782.04(2) (classifying second-degree murder as a first-degree felony, punishable by life imprisonment); 777.04(4)(c) (providing that an attempt to commit a crime that is a first-degree felony punishable by life imprisonment is classified as a second-degree felony); 775.087(1)(b) (providing that actual possession of a weapon or firearm during the commission of a second-degree felony offense results in the crime being reclassified as a first-degree felony). Permissible Sentence: Minimum mandatory term of 10 years' imprisonment, § 775.087(2)(a)(1)(a)(requiring 10-year minimum mandatory term when person is convicted of murder and actually possessed a firearm during the commission of the offense), and no more than 30 years' imprisonment, § 775.082(3)(b) (providing that the m...

...§§ 782.04(2) (classifying second-degree murder as a first-degree felony, punishable by life imprisonment); 777.04(4)(c) (providing that an attempt to commit a crime that is a first-degree felony punishable by life imprisonment is classified as a second-degree felony); 775.087(1)(b) (providing that actual possession of a weapon or firearm during the commission of a second-degree felony offense results in the crime being reclassified as a first-degree felony). Permissible Sentence: Minimum mandatory term of 20 years' imprisonment, § 775.087(2)(a)(1)(a), (2)(a)(2) (requiring 20-year minimum mandatory term when person is convicted of murder and discharges a firearm during the commission of the offense), and no more than 30 years' imprisonment, § 775.082(3)(b) (providing that t...

...§§ 782.04(2) (classifying second-degree murder as a first-degree felony, punishable by life imprisonment); 777.04(4)(c) (providing that an attempt to commit a crime that is a first-degree felony punishable by life imprisonment is classified as a second-degree felony); 775.087(1)(b) (providing that actual possession of a weapon or firearm during the commission of a second-degree felony offense results in the crime being reclassified as a first-degree felony). Permissible Sentence: Minimum mandatory term of 25 years' imprisonment but no more than life imprisonment. § 775.087(2)(a)(1)(a), (2)(a)(3) (requiring 25-year minimum mandatory term when person is convicted of murder and discharges a firearm causing death or great bodily harm to any person during the commission of the offense)....

...sion of a firearm Degree of Felony: Second Degree. §§ 782.07(1) (classifying manslaughter as a second-degree felony); 777.04(4)(d) (providing that an attempt to commit a crime that is a second-degree felony is classified as a third-degree felony); 775.087(1)(c) (providing that actual possession of a weapon or firearm during the commission of a third-degree felony offense results in the crime being reclassified as a second-degree felony)....

...years' imprisonment (if the lowest permissible sentence under the guidelines exceeds the statutory maximum sentence, the guideline sentence must be imposed). §§ 775.082(3)(c); 921.0024(2). No minimum mandatory term of 10 years' imprisonment under § 775.087(2)(a)(1) because manslaughter is not an enumerated offense....

...ion of the felony Degree of Felony: Second Degree. §§ 782.07(1) (classifying manslaughter as a second-degree felony); 777.04(4)(d) (providing that an attempt to commit a crime that is a second-degree felony is classified as a third-degree felony); 775.087(1)(c) (providing that actual possession of a weapon or firearm during the commission of a third-degree felony offense results in the crime being reclassified as a second-degree felony)....

...years' imprisonment (if the lowest permissible sentence under the guidelines exceeds the statutory maximum sentence, the guideline sentence must be imposed). §§ 775.082(3)(c); 921.0024(2). No minimum mandatory term of 20 years' imprisonment under § 775.087(2)(a)(2) because manslaughter is not an enumerated offense....

...to Marcia Radway Degree of Felony: Second Degree. §§ 782.07(1) (classifying manslaughter as a second-degree felony;) 777.04(4)(d) (providing that an attempt to commit a crime that is a second-degree felony is classified as a third-degree felony); 775.087(1)(c) (providing that actual possession of a weapon or firearm during the commission of a third-degree felony offense results in the crime being reclassified as a second-degree felony)....

...years' imprisonment (if the lowest permissible sentence under the guidelines exceeds the statutory maximum sentence, the guideline sentence must be imposed). §§ 775.082(3)(c); 921.0024(2). No minimum mandatory term of 25 years' imprisonment under § 775.087(2)(a)(3) because manslaughter is not an enumerated offense....

...§§ 775.082(3)(c); 921.0024(2). And we further find during commission of said felony the defendant ___ was in actual possession of a firearm Degree of Felony: First Degree. §§ 784.045(2) (classifying aggravated battery as a second-degree felony); 775.087(1)(b) (providing that actual possession of a weapon or firearm during the commission of a second-degree felony offense results in the crime being reclassified as a first-degree felony). Permissible Sentence: Minimum mandatory term of 10 years' imprisonment, § 775.087(2)(a)(1)(g) (requiring 10-year minimum mandatory term when person is convicted of aggravated battery and actually possessed a firearm during the commission of the offense), and no more than 30 years' imprisonment, § 775.082(3)(b) (providi...

...___ was not in actual possession of a firearm And we further find the defendant ___ did discharge said firearm during the commission of the felony Degree of Felony: First Degree. §§ 784.045(2) (classifying aggravated battery as a second-degree felony); 775.087(1)(b) (providing that actual possession of a weapon or firearm during the commission of a second-degree felony offense results in the crime being reclassified as a first-degree felony). Permissible Sentence: Minimum mandatory term of 20 years' imprisonment, § 775.087(2)(a)(1)(g), (2)(a)(2) (requiring 20-year minimum mandatory term when person is convicted of aggravated battery and discharges a firearm during the commission of the offense), and no more than 30 years' imprisonment, § 775.082(3)(b) (prov...

...*459 ___ did not discharge said firearm during the commission of the felony And we further find the defendant's discharging the firearm ___ did result in great bodily harm to Marcia Radway Degree of Felony: First Degree. §§ 784.045(2) (classifying aggravated battery as a second-degree felony); 775.087(1)(b) (providing that actual possession of a weapon or firearm during the commission of a second-degree felony offense results in the crime being reclassified as a first-degree felony). Permissible Sentence: Minimum mandatory term of 25 years' imprisonment but no more than life imprisonment. § 775.087(2)(a)(1)(g), (2)(a)(3) (requiring 25-year minimum mandatory term when person is convicted of aggravated battery and discharges a firearm causing death or great bodily harm to any person during the commission of the offense)....

...And we further find during commission of said felony the defendant ___ was in actual possession of a firearm Degree of Felony: Third Degree. § 784.021(2) (classifying aggravated assault as a third-degree felony). Permissible Sentence: Minimum mandatory term of 10 years' imprisonment, § 775.087(2)(a)(1)(f) (requiring 10-year minimum mandatory term when person is convicted of aggravated assault and actually possessed a firearm during the commission of the offense), and no more than 15 years' imprisonment, § 775.082(3)(c) (providi...

...___ was not in actual possession of a firearm And we further find the defendant ___ did discharge said firearm during the commission of the felony Degree of Felony: Third Degree. § 784.021(2) (classifying aggravated assault as a third-degree felony). Permissible Sentence: Minimum mandatory term of 20 years' imprisonment, § 775.087(2)(a)(1)(f), (2)(a)(2) (requiring 20-year minimum mandatory term when person is convicted of aggravated assault and discharges a firearm during the commission of the offense), which is in excess of the statutory maximum of 15 years' imprisonment, § 775.082(3)(c)....

...in great bodily harm to Marcia Radway Degree of Felony: Third Degree. § 784.021(2) (classifying aggravated assault as a third-degree felony). Permissible Sentence: Minimum mandatory term of 25 years' imprisonment but no more than life imprisonment. § 775.087(2)(a)(1)(f), (2)(a)(3) (requiring 25-year minimum mandatory term when person is convicted of aggravated assault and discharges a firearm causing death or great bodily harm to any person during the commission of the offense)....

...Chambers was convicted of aggravated assault relying on the elements in section 784.021(1)(a), Florida Statutes (2002), the use of a weapon was an essential element of the offense. As a result, aggravated assault in this case could not be reclassified. See § 775.087(1)....

...general, such as referring to the offense levels in the sentencing guidelines, or penalties that might be imposed based upon a potential enhancement or reclassification. In this case, because felony battery is neither reclassified nor enhanced under section 775.087, it would seem to be the "least" of these three offenses. Attempted manslaughter is subject to reclassification for use of a weapon, but is not subject to enhancement for use of a firearm under section 775.087(2)(a)(1)(a-r). Aggravated assault, when use of a weapon is an element of the offense, is not subject to reclassification, but is subject to enhancement for use of a firearm under section 775.087(2)(a)(1)(f)....

ALTENBERND, J., Dissents with opinion. . See § 775.087(2)(a)(3), Fla. Stat. (2004). . Strickland v

...iolation of section 893.13(6)(b); and possession of ten or more counterfeit bills in violation of section 831.08, Florida Statutes (2003). The offense of trafficking in cocaine was reclassified from a first-degree felony to a life felony pursuant to section 775.087(1)(a), Florida Statutes (2003). Section 775.087(1)(a) provides for reclassification of the level of the offense where the defendant is convicted of a felony, except a *657 felony where the use of a firearm or weapon is an essential element of the offense, and during the commission...

...The jury checked verdict A, which read: "The defendant is guilty of Armed trafficking in Cocaine [1] (28 to 200 grams) ( Actually Possessing Firearm ) as charged." (Emphasis added.) Following the jury's verdict, the level of offense for the trafficking conviction was reclassified to a life felony pursuant to section 775.087(1)(a)....

...The basis of Green's claim is that it was fundamental error to reclassify the level of offense based on the jury's finding that he actually possessed a firearm where the information did not charge that he actually possessed a firearm. The verdict form confused subsections (1) and (2)(a)(1) of section 775.087. In order to reclassify the level of offense of trafficking in cocaine pursuant to section 775.087(1)(a), the State must first allege, as was done in count one of the information, that during the commission of the offense, the defendant carried, displayed, used, threatened to use or attempted to use any weapon or firearm. However, pursuant to section 775.087(2)(a)(1), a ten-year *658 mandatory minimum is applicable to certain enumerated offenses where, during the commission of the offense, the defendant "actually possessed" a firearm. Here, verdict A on the verdict form contained language pertaining to a violation of section 775.087(2)(a)(1) in that the jury was asked to find whether Green actually possessed a firearm during the commission of the offense of trafficking in cocaine. This finding was then improperly used to reclassify the level of the offense pursuant to section 775.087(1)(a) when the jury made no finding that Green carried, displayed, used, threatened to use, or attempted to use a firearm....

...The Chambers court then further concluded: "Thus, it is fundamental error to allow a defendant to be convicted of a crime for which he was not charged and for which the defendant had no legal or strategic justification to include on the verdict form." Id. at 450. Even though a sentencing enhancement under section 775.087(2)(a)(1) would have been less punitive in this instance than a reclassification of the level of offense of trafficking in cocaine, there was no justification for the State to include the uncharged sentencing enhancement on the jury verdict where there was insufficient evidence to support the reclassification under section 775.087(1)(a)....

...the information. The court held that it constitutes fundamental error to convict a defendant of an uncharged crime. The error in this case was compounded by the instructions given to the jury. To reclassify the level of a felony pursuant to sections 775.087(1)(a), (b), and (c), the standard jury instructions require that the jury be instructed that the State must prove that the defendant either carried, displayed, used, threatened to use, or attempted to use a firearm....

...Here the jury was instructed: "If you find that during the *659 trafficking the defendant was armed or armed himself with a firearm or other dangerous weapon, you should find him guilty of trafficking while armed." Thus the jury was not properly instructed with regard to a reclassification pursuant to section 775.087(1)(a)....

..." with a firearm because he had a gun in the closed console of his vehicle. We agree with Green that his appellate counsel was ineffective in failing to argue that the trial court fundamentally erred in reclassifying the level of offense pursuant to section 775.087(1)(a) based on the jury finding that Green actually possessed a weapon when the information did not charge that Green actually possessed a weapon....

...firearm during the commission of the trafficking offense thereby providing the basis for the reclassification of the level of offense from a first-degree felony to a life felony. [2] For purposes of imposing a minimum mandatory sentence pursuant to section 775.087(2)(a)(1), "possession" of a firearm is defined as "carrying it on the person" or by having it "within immediate physical reach with ready access with the intent to use the firearm during the commission of the offense." § 775.087(4). Thus, not only was actual possession of a firearm not charged, it would appear that there was insufficient evidence adduced at trial to enhance Green's sentence pursuant to section 775.087(2)(a)(1). Regardless, there was no basis upon which to reclassify the level of offense pursuant to section 775.087(1)(a) where there was no evidence that Green carried, displayed, used, threatened to use, or attempted to use a firearm....

...rmine whether counsel's performance was deficient, we must apply the current law to determine whether Green is now entitled to relief on the issue raised. [4] The trial court also fundamentally erred in reclassifying the level of offense pursuant to section 775.087(1)(a) when there was no evidence presented establishing that Green either carried, displayed, used, threatened to use, or attempted to use a firearm....

...ing that the three-year minimum mandatory sentence would not be imposed, we remand this matter to the trial court so that the defendant can have an opportunity to move to withdraw his plea. The defendant was charged with, and convicted of, violating section 775.087(2)(a)1 of the Florida Statutes (2001)....

...without imposing the three-year minimum mandatory sentence. We agree with the State that the trial court committed reversible error by refusing to impose a minimum mandatory three-year term of imprisonment on the defendant's firearm conviction since section 775.087 of the Florida Statutes provides that any person who is convicted of possession of a firearm by a convicted felon and actually possesses the firearm is subject to such mandatory sentencing. Our courts have construed section 775.087 as meaning that, in order to obtain the *834 sentencing enhancement provided for in the statute, the State must prove that the defendant was in actual possession of the firearm....

...hat a minimum mandatory sentence would not be imposed, upon remand, the defendant must be given the opportunity to withdraw his plea, if he so chooses. Sentence VACATED and cause REMANDED. SHARP, W. and PLEUS, JJ., concur. NOTES [1] See §§ 790.23, 775.087(2)(a)1....

murder was enhanced to a life felony under section 775.087, Florida Statutes (2000), because of his use

being in “actual possession” of the firearm. Section 775.087(2)(a)l.r., Florida Statutes (2008), provides

...tempted second degree murder with the use of a firearm during the commission of that offense, and both attempted second degree murder with a firearm and attempted aggravated battery with a firearm carry a twenty-year minimum mandatory sentence under section 775.087(2)(a)(2), Florida Statutes (2004), the penalties would be the same, and thus attempted aggravated battery could not be a lesser included offense of attempted second degree murder....

...Attempted aggravated battery is a third degree felony punishable up to five years incarceration. Attempted second degree murder is a second degree felony punishable up to fifteen years incarceration. The use of a firearm during the commission of an attempted aggravated battery, pursuant to section 775.087(2)(a), Florida Statutes, reclassifies this third degree felony to a second degree felony, punishable up to fifteen years incarceration, while the same statute reclassifies the attempted second degree murder to a first degree felony punishable up to thirty years. See Nesbitt v. State, 889 So.2d 801, 803 (Fla.2004). Thus, even with the imposition of a twenty-year minimum mandatory sentence under section 775.087(1), pursuant to the 10/20/Life Act, attempted second degree murder, which carries a thirty year sentence, would provide a greater punishment than that of the attempted aggravated battery....

...Crist, Jr., Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appellee. FULMER, Judge. Errol Crawford challenges his thirty-year sentence for aggravated battery. Because the trial court erred in utilizing the weapon enhancement in section 775.087(1), Florida Statutes (1997), we reverse and remand for the trial court to resentence Crawford for a second-degree felony. Section 775.087(1) precludes reclassification if the crime charged requires the use of a weapon as one of its essential elements....

...According to his motion, Appellant was charged with first degree murder committed on June 1, 1991, and entered a plea of guilty to second degree murder. He was sentenced pursuant to his negotiated plea to forty-five years in prison with a threeyear mandatory minimum for possession of a firearm pursuant to section 775.087(2)....

...The judgment reflected *412 that the offense of second degree murder was a first degree felony punishable by life. Appellant argued in his motion that the degree of the felony offense had to be enhanced by the use of the firearm to a life felony, pursuant to section 775.087(1)(a), Fla....

...Thus, use of a weapon was not an essential element of the burglaries charged in Counts 1 and 3. See Lovett v. State, 773 So.2d 574, 576 (Fla. 3d DCA 2000) (finding that "[b]ecause the State charged only an assault and battery under the burglary statute, and charged the use of the weapon under section 775.087, enhancement of the conviction was permitted"). Use of a weapon under section 775.087, Florida Statutes (1992), as to the murder and attempted murder convictions was likewise appropriately scored because possession or use of a weapon during commission of these offenses is not an element of the crime....

...State, 573 So.2d 813, 815 (Fla. 1991). We also find the defendant's claim, that his sentence was improperly enhanced due to the possession or use of a firearm, is meritless. The defendant was charged, convicted, and his sentences were enhanced pursuant to section 775.087 because *570 he was armed with and did use a deadly weapon during commission of these offenses (a bat and/or a knife)....

twenty-five-year mandatory minimum pursuant to section 775.087(2), Florida Statutes (2002). On counts II and

...y firearms. Belcher and the two other men then drove north on I-95 and stopped at the next rest stop. One tried to hide a firearm under the back seat and Belcher put a rifle in a garbage can. Shortly thereafter they were arrested by police officers. Section 775.087(2) provides for a three year mandatory minimum sentence if it is shown that the defendant "had in his possession a firearm" during the commission of a robbery. [4] (emphasis supplied) In Hough v. State, 448 So.2d 628 (Fla. 5th DCA 1984), this court interpreted section 775.087(2) to mean that the three year mandatory minimum can only be imposed if the defendant has actual rather than vicarious possession of a firearm during the robbery....

...rest stop. However, the robbery had been completed by that time. Possession of a firearm by an accomplice during the commission of a robbery is not a sufficient basis to warrant the imposition of the mandatory minimum three year sentence pursuant to section 775.087(2)....

...med robbery conviction. AFFIRM; QUASH part of sentence. DANIEL, C.J., and HARRIS, Associate Judge, concur. NOTES [1] §§ 777.011, 812.13, Fla. Stat. (1987). [2] §§ 777.011, 777.04 & 812.13, Fla. Stat. (1987). [3] § 790.23, Fla. Stat. (1987). [4] Section 775.087(2), Florida Statutes, provides: (2) Any person who is convicted of: (a) Any ......

...d pursuant to rule 3.800 by reducing his attempted second degree murder charge from a first degree felony to a second degree felony. The trial court reasoned that it had been improper to enhance the attempted second degree murder offense pursuant to section 775.087(1) to a first degree offense because use of a weapon was an essential element of the offense as charged. We disagree and reverse. In this case, Tinsley pled guilty to three attempted first degree murder charges, which included one count of attempted second degree murder with a weapon, and two counts of attempted third degree murder. Based on section 775.087(1), Florida Statutes (1993), the trial court reclassified the second degree murder offense to a first degree felony. [1] The information charged that Tinsley attempted to kill the victims with a knife. Section 775.087(1) provides: *1090 Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such felony the defendant c...

...mission of such felony the defendant commits an aggravated battery, the felony for which the person is charged shall be reclassified .... (emphasis supplied) Whether the attempted second degree murder charge should have been reclassified pursuant to section 775.087(1) depends on whether section 775.087(1) refers to an "essential element" set forth in an information, or whether it refers to a required and necessary element of the crime as set forth by the particular substantive criminal statute....

...In this case, the element of use of the knife appears solely in the information. Second degree murder can be attempted in a variety of ways other than by use of a knife or weapon. That statute does not require as an essential element that a knife or any other weapon be used. [2] The proper reference in section 775.087(1) is to the substantive criminal law which defines the crime in question. In an analogous case, Strickland v. State, 437 So.2d 150 (Fla. 1983), the Florida Supreme Court held that a first degree attempted murder charge was properly enhanced by section 775.087(1) to a life felony....

...In affirming the enhancement, the court said: "We find the use of a firearm not to be an essential element of the crime of attempted first degree murder." 437 So.2d at 152. In Miller v. State, 460 So.2d 373 (Fla. 1984), the court reaffirmed this interpretation of section 775.087(1)....

...The court upheld that reclassification, although the issue argued in that appeal was whether reclassification was proper when a defendant is convicted of a lesser included offense. However, implicit in the court's affirmance in Miller, is its holding in Strickland, that the "essential element of the crime" language of section 775.087(1) references the substantive criminal law, and not the allegations of the information or indictment. REVERSED. GOSHORN and THOMPSON, JJ., concur. NOTES [1] Attempted second degree murder is a second degree felony. In this case, the trial judge reclassified this charge to a first degree felony pursuant to section 775.087(1)....

...the use or threat of physical force or violence against an individual." [2] This finding by the jury was required in order to enhance Mr. Lamb's conviction for the crime of false imprisonment from a third-degree felony to a second-degree felony. See § 775.087(1).

...At the sentencing hearing, defendant elected to be sentenced under the sentencing guidelines, and based on a scoresheet total of 190 points, the trial court sentenced him to imprisonment for 17 years, the maximum in the permitted range, and imposed the three year minimum mandatory period provided by section 775.087(2), Florida Statutes (1983). Second degree murder is a felony of the first degree, § 782.04(2), Fla. Stat. (1983), and when committed with a firearm, is reclassified as a life felony. § 775.087(1)(a), Fla....

...This assertion appears correct, but is a matter for implementation by the Parole Commission, and not the trial court. Our function is served by the holding that in this case, the guidelines do not apply. One other matter is in dispute. Defendant contends that since the crime is already reclassified to a life felony by section 775.087(1), the court may not impose the three year minimum mandatory sentence required by section 775.087(2), because to do so would constitute an impermissible double enhancement. He relies on Whitehead v. State, 450 So.2d 545 (Fla. 2d DCA 1984), review granted, No. 65,492 (Fla. Dec. 13, 1984), which held that in a conviction for second degree murder with a firearm, the court could either enhance the crime under section 775.087(1) or impose the minimum mandatory sentence provided for by section 775.087(2), but could not do both....

...State, 431 So.2d 274 (Fla. 5th DCA 1983), approved, State v. Perez, 449 So.2d 818 (Fla. 1984), and Blanton v. State, 388 So.2d 1271 *766 (Fla. 4th DCA 1980), rev. denied, 399 So.2d 1140 (Fla. 1981), the Brown court concluded that subsections (1) and (2) of section 775.087 each serve a different purpose....

...State, 464 So.2d 172 (Fla. 2d DCA 1985). Because defendant should have been sentenced under section 775.082(3)(a) without regard for the guidelines, we vacate the sentence and remand for resentencing. The minimum mandatory term of imprisonment required by section 775.087(2) shall apply....

to invoke the 10-20-Life sentence enhancement. § 775.087(2)(a)1., Fla. Stat. (2012) (requiring that the

...Rogers, Senior Assistant Attorney General, Tallahassee, for Appellee. PER CURIAM. Appellant pled guilty to the crime of armed robbery. He was adjudicated guilty and sentenced as an habitual violent felony offender to twenty years in prison with a mandatory minimum term of ten years. Pursuant to section 775.087(2), Florida Statutes (1995), the court also imposed a three-year mandatory minimum for possession of a firearm during the offense....

...ense was sufficient basis for imposition of the three-year sentence enhancement. We have previously stated that a defendant not actually armed still may be adjudicated guilty of armed robbery, but imposition of the three-year mandatory minimum under section 775.087(2) must be supported by a factual basis demonstrating actual possession *1137 of the firearm during commission of the offense....

...sufficient to convict Demps of armed robbery on the theory he was a principal to the crime, it is not adequate to warrant the imposition of the minimum mandatory sentence. More than vicarious or constructive possession of the firearm is required by section 775.087(2)....

that the firearm reclassification statute, section 775.087(1), Florida Statutes (1995), was not cited

...e shooting death of his father and attempted first degree murder with a firearm involving his father's girlfriend. Nelson was sentenced to concurrent terms of 26.6 years imprisonment, including a 25-year mandatory minimum term of incarceration under section 775.087(2), Florida Statutes (1999), commonly referred to in its entirety as the "10/20/Life" statute. We affirm and write only to briefly address Nelson's claim that section 775.087(2) is unconstitutional. Section 775.087(2) specifically provides that any person who discharges a firearm during the commission of certain enumerated felonies, which results in death or great bodily harm to any person, shall be sentenced to a mandatory minimum term of twenty-five years imprisonment. Nelson challenges the constitutionality of section 775.087(2) on the grounds that it (1) violates the single-subject rule, (2) violates the separation of powers provision, (3) violates substantive due process, (4) constitutes cruel and unusual punishment, and (5) is void for vagueness. We reject each of these claims. Nelson has not shown that section 775.087(2) violates the single-subject rule....

...See Art. III, § 6, Fla. Const. ("Every law shall embrace but one subject and matter properly connected therewith, and the single subject shall be briefly expressed in the title."). In Chapter 99-12, Laws of Florida (1999), the session law creating section 775.087(2), the legislature noted that Florida ranks as one of the most violent states in the nation and that "criminals who use guns during the commission of violent crimes pose an increased danger to the lives, health, and safety of Florida's citizens." The legislature went on to state that the intent of the enactment of section 775.087 was to ensure that offenders who use guns to commit violent crimes would receive longer mandatory prison terms than provided in the then-current law, "effectively incapacitat[ing] the offender, prevent[ing] future crimes, and reduc[ing] violent crime rates." Id....

...iolators as well as the forfeiture of gain time for violation of control release. Appellant's argument is not persuasive since these related statutory provisions and topics were addressed primarily to incorporate changes mandated by the amendment to section 775.087. For instance, offenders serving a minimum mandatory term under section 775.087 are not eligible for probation, parole, statutory gain time, or control release....

...nt crimes. See Burch v. State, 558 So.2d 1, 3 (Fla.1990) (upholding section 893.13(1)(e), Florida Statutes (1987), finding that each topic in chapter 87-243 had a logical relationship to the single subject of controlling crime). [1] *764 Claims that section 775.087(2) violates the separation of powers provision of the Florida Constitution because it removes sentencing discretion from the judiciary and prosecutorial discretion from the executive have been considered and rejected by the First District in Green v. State, 792 So.2d 643 (Fla. 1st DCA 2001). There, the court noted that section 775.087(2)'s precursor, section 775.087(2), Florida Statutes (1976), which required the imposition of a three-year mandatory minimum sentence for persons convicted of possessing or using a firearm during certain enumerated felonies, had survived separation of powers provisi...

...cing discretion from the judiciary. See id. at 643 (citing Scott v. State, 369 So.2d 330 (Fla.1979)). The court in Green further pointed out that "[t]here is no difference between the language of the 10/20/ Life statute and [its predecessor statute, section 775.087(2), Florida Statutes (1976) ] addressed in Scott, other than the length of the mandatory terms." Id....

...es not eliminate all prosecutorial discretion in seeking enhanced penalties under the statute, but instead clearly contemplates that in some qualifying cases prosecutors will use their discretion not to seek enhanced penalties under the statute. See § 775.087(5), Fla....

...ory penalty was not imposed"). While such a provision might make it more onerous for a prosecutor to exercise his or her discretion not to seek enhanced penalties under the statute, it does not eliminate that discretion altogether. 792 So.2d at 644. Section 775.087(2), Florida Statutes (1976), also withstood constitutional challenges similar to those made here based on due process and cruel and unusual punishment claims....

...3001, 77 L.Ed.2d 637 (1983) (holding that reviewing courts "should grant substantial deference to the broad authority that legislatures necessarily possess in determining the types and limits of punishments for crimes"). Appellant's substantive due process claim must fail as well because section 775.087(2) "bears a reasonable relationship to a permissive legislative objective and is not discriminatory, arbitrary, or oppressive." Ilkanic v. City of Fort Lauderdale, 705 So.2d 1371, 1372 (Fla.1998). Lastly, we cannot find validity in appellant's void for vagueness challenge wherein he argues that section 775.087(2) fails to define various terms within that section....

...concurrent fifteen year minimum mandatory sentence as a habitual violent felony offender. In addition, for possession of a firearm, the trial court imposed a ten year minimum mandatory term for each offense in accordance with the 10-20-life statute. § 775.087(2), Fla....

...each of the four 10-20-life offenses. In support thereof, this Court quoted the Final Analysis of CS/CS/HB 113 (SB 194) of the House of Representative's Committee on Crime and Punishment. This bill later became Chapter 99-12, Laws of Florida, and subsection 775.087(2)....

...V; Art. I, § 9, Fla. Const. Because the factual background is not important to the resolution of these issues, we will immediately proceed to address each issue in the order presented. Resolution of the first issue revolves around the provisions of section 775.087(2)(d), Florida Statutes (1999), [1] which states: It is the intent of the Legislature that offenders who actually possess, carry, display, use, threaten to use, or attempt to use firearms or destructive devices be punished to the full...

...Webb, 398 So.2d 820, 824 (Fla.1981) (emphasis deleted) (quoting Foley v. State ex rel. Gordon, 50 So.2d 179, 184 (Fla.1951) (quoting Curry v. Lehman, 55 Fla. 847, 47 So. 18, 19 (1908))); see also State v. Patterson, 694 So.2d 55, 58 (Fla. 5th DCA 1997). It is rather obvious from the provisions of section 775.087(2)(d) that the evil to be corrected is the use of firearms by felons during the commission of certain crimes....

...the harshest penalty could be imposed on felons who use firearms. However, when the state of the law at the time the statute was enacted is considered along with the statutory language that intent becomes far less obvious. Prior to the enactment of section 775.087(2)(d), the Florida Supreme Court in Palmer v. State, 438 So.2d 1 (Fla.1983), addressed the issue of stacking minimum mandatory sentences under the 1981 version of section 775.087(2), which provided, in pertinent part, that any person convicted of certain specified felonies who had in his possession a "firearm," as defined in s....

...Notwithstanding the provisions of s. 948.01, adjudication of guilt or imposition of sentence shall not be suspended, deferred, or withheld, nor shall the defendant be eligible for parole or statutory gain-time under s. 944.27 or s. 944.29, prior to serving such minimum sentence. § 775.087(2)(b), Fla. Stat. (1981). The court held that the minimum mandatory sentences under section 775.087(2), Florida Statutes (1981), could not be imposed consecutively *936 for offenses that arose out of the same criminal episode. The court arrived at this conclusion after it discovered that "[n]owhere in the language of section 775.087 do we find express authority by which a trial court may deny, under subsection 775.087(2), a defendant eligibility for parole for a period greater than three calendar years." Palmer, 438 So.2d at 3....

...In State v. Christian, 692 So.2d 889 (Fla.1997), the Florida Supreme Court addressed the issue of stacking minimum mandatory sentences in cases where one firearm is used in a continuous criminal episode. The court analyzed the provisions of sections 775.087 and 775.021(4)(a), Florida Statutes (1993), but found nothing in either statute that would indicate the Legislature's intent that stacking of minimum mandatory sentences should be required....

...The stacking of firearm mandatory minimum terms thus is permissible where the defendant shoots at multiple victims, and impermissible where the defendant does not fire the weapon. Christian, 692 So.2d at 890-91 (footnotes omitted). This was the state of the law prior to enactment of section 775.087(2)(d) in 1999. What is significant about Palmer and Christian, besides the fact that they both pre-date section 775.087(2)(d), is the court's clear holding that it could not find any legislative authority in the statutes it analyzed for stacking minimum mandatory sentences arising out of the same episode. Recent decisions of the Florida courts that have specifically interpreted and applied section 775.087(2)(d) do not find such legislative authority in that statute either....

...State, 842 So.2d 198 (Fla. 3d DCA 2003); Cunningham v. State, 838 So.2d 627 (Fla. 5th DCA 2003); Stafford v. State, 818 So.2d 693 (Fla. 5th DCA 2002); see also Williams v. State, 820 So.2d 1000 (Fla. 3d DCA 2002). These decisions, after considering all of the language of section 775.087(2)(d), focused on the language that expressly provides that "[t]he court shall impose any term of imprisonment provided for in this subsection consecutively to any other term of imprisonment imposed for any other felony offense." § 775.087(2)(d), Fla....

...Perreault; Wilchcombe; Cunningham; Stafford; see also Smith v. State, 867 So.2d 406 (Fla. 1st DCA 2003). Hence, after analyzing the language of the statute and the state of the law at the time it was enacted, the courts are still unable to find legislative authority in section 775.087(2)(d) for consecutive minimum mandatory sentences for offenses arising out of the same criminal episode....

...temming from a single act); Merrell v. State, 841 So.2d 677 (Fla. 3d DCA 2003); Law v. State, 824 So.2d 1055, 1058 (Fla. 5th DCA 2002) (observing that the supreme court had determined "that when a felony conviction is reclassified and enhanced under section 775.087(2) ......

...We also reverse the consecutive minimum mandatory sentences for the two robbery offenses and remand this case to the trial court for the imposition of concurrent minimum mandatory sentences for those two offenses. [4] *938 AFFIRMED in part; REVERSED in part. PLEUS and ORFINGER, JJ., concur. NOTES [1] The provisions of section 775.087(2), Florida Statutes (1999), are commonly referred to as the "10/20/Life" statute....

...Before NESBITT, COPE and LEVY, JJ. On Motion for Rehearing PER CURIAM. In his motion for rehearing, defendant-appellant Herman Minor argues that his conviction of manslaughter with a firearm was not subject to reclassification as a first-degree felony under section 775.087(1), Florida Statutes (1993)....

...Manslaughter is a second-degree felony. See id. § 782.07. Because the use of a weapon or firearm is not an element of the offense of manslaughter, see id., the crime is subject to reclassification to a first-degree felony where a weapon or firearm is used. See id. § 775.087(1)(a); Mitchell v....

...In Lamont, the defendant was convicted of burglary of an occupied dwelling with a firearm. See id. at 439. Since the defendant was convicted under a subdivision of the burglary statute which specifically involves use of a firearm, it was impermissible to apply the firearm enhancement statute, section 775.087(1), Florida Statutes, to accomplish any additional enhancement....

...y was aggravated battery with a deadly weapon. See 541 So.2d at 1228. Where, in a third-degree murder case, an essential element of the underlying felony is use of a deadly weapon, it is impermissible to apply the weapon/firearm enhancement statute, section 775.087(1), Florida Statutes....

...State, 585 So.2d 932 (Fla.1991). In Gonzalez, like Franklin, the felony underlying the third-degree murder conviction was aggravated battery with a deadly weapon. See id. at 933. For that reason, reclassification of the crime of third-degree murder under section 775.087(1) was impermissible....

...es. First, he claims that because the jury did not find that he "actually" possessed the knife, the offenses for which he was convicted should not have been reclassified to higher-level felonies based upon the weapon "reclassification" provisions of section 775.087, Florida Statutes (2005). Section 775.087 provides as follows: (1) Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such felony the defen...

...(b) In the case of a felony of the second degree, to a felony of the first degree. (c) In the case of a felony of the third degree, to a felony of the second degree. In State v. Rodriguez, 602 So.2d 1270 (Fla.1992), the Florida Supreme Court held that the reclassification provision in section 775.087(1) could not be applied using the principal theory....

...other than Roberts. The jury expressly found that Roberts carried, used, threatened to use, or attempted to use a weapon in committing both crimes. This is exactly what is required for reclassification of the felonies to higher-level offenses under section 775.087(1)....

...the principle of double jeopardy, Mills v. State, 773 So.2d 650, 651 (Fla. 1st DCA 2000) (Browning, J., concurring in part and dissenting in part), aff'd, 822 So.2d 1284 (Fla.2002), and the fact that both the firearms reclassification provisions of section 775.087(1) and the habitual felony offender provisions of section 775.084 have been labeled as sentencing enhancement statutes....

...oth enhancements may be imposed. See State v. Whitehead, 472 So.2d 730 (Fla. 1985). Using this analysis, it is clear that there is no double jeopardy prohibition against applying a habitual offender enhancement to a felony already reclassified under section 775.087(1)....

...Our supreme court has consistently ruled that the habitual offender statutes meet constitutional muster. Gudinas, 879 So.2d at 619. Nothing in Shepard changes this analysis. AFFIRMED. THOMPSON and SAWAYA, JJ., concur. NOTES [1] We would note, however, that section 775.087(1) is also regularly discussed as a "reclassification" statute....

...the forfeiture to be processed. According to his verified petition (and attachments), Buffa had not accrued gain-time when disciplinary action was taken, because he was serving the initial three-year mandatory portion of his sentence, imposed under section 775.087(2), Florida Statutes (1991) for possession or use of a firearm. This statutory provision makes appellant ineligible "for parole or statutory gain-time under s. 944.275, prior to serving such minimum sentence." § 775.087(2), Fla. Stat. (1991). As the affidavit attached to the response filed by the Department of Corrections below states: Florida Statute 775.087(2) provides that a person sentenced to a minimum mandatory term shall not be eligible for parole or statutory gaintime under s....

...The jury also found by special verdict that Brown discharged a firearm during the course of the crime and, as a result of the discharge, great bodily harm was inflicted on the victim. He received a split sentence of 35 years' incarceration with a 25-year minimum mandatory term pursuant to section 775.087(2), Florida Statutes (2001) (the 10-20-life statute), and 10 years of probation. Brown's conviction was reclassified from a second-degree felony to a first-degree felony as a result of the firearm element, pursuant to section 775.087(1), Florida Statutes (2001)....

...the statutory maximum penalty of 30 years' incarceration for a first-degree felony. See § 775.082(3)(b), Fla. Stat. (2001). Because the jury found that Brown's discharge of a firearm resulted in great bodily harm, the minimum mandatory range under section 775.087(2) was 25 years to life imprisonment. See § 775.087(2)(a)3., Fla....

...h a 25-year minimum mandatory term. Once the trial court imposed a minimum mandatory term of 25 years, it could not exceed the 30-year maximum penalty for a first-degree felony under section 775.082. The 25-year to life minimum mandatory range under section 775.087(2)(a)3....

...NORTHCUTT, Judge. In September 1994, Mark Paulino pleaded guilty to armed burglary of a structure and to robbery. The trial court sentenced him to two terms of four years' imprisonment. Each sentence included a three-year minimum mandatory term pursuant to section 775.087(2), Florida Statutes (1993), because Paulino possessed a firearm when he committed the crimes....

...A court's authority to modify a sentence derives from Florida Rule of Criminal Procedure 3.800(b). That rule, by its terms, does not apply to cases "in which the trial judge has imposed the minimum mandatory sentence or has no sentencing discretion." This exclusion precludes modification of sentences imposed pursuant to section 775.087(2). See § 775.087(2)(a), Fla....

...uring commission of his crime "shall be sentenced to a minimum term of imprisonment of 3 calendar years.") (emphasis supplied); State v. Sesler, 386 So.2d 293 (Fla. 2d DCA 1980) (trial court has no discretion in imposing minimum mandatory term under section 775.087(2))....

...Sanders v. State, 663 So.2d 674 (Fla. 2d DCA 1995). In doing so, we also note that Paulino's convictions seem to arise from the same criminal episode, and for that reason it would be improper for the court to impose consecutive minimum mandatory terms under section 775.087....

...Because the Florida Supreme Court rejected Williams' argument in Cruller v. State, 808 So.2d 201 (Fla.2002), we affirm. On cross-appeal, the State submits that the trial court erred in imposing 10 year minimum mandatory firearm possession sentences concurrently instead of consecutively as required by section 775.087(2)(d), Florida Statutes (1999)....

charges as first-degree felonies, pursuant to section 775.087, Florida Statutes (2005), was improper. “ ‘The

...Harper, like Pinder, was convicted of murder and the underlying felony upon which the murder conviction was based. Unlike Pinder, Harper chose not to appeal the multiple convictions, but chose only to attack the legality of the enhanced sentence on the ground that he was being twice punished for the same criminal act. Section 775.087(1), Florida Statutes provides that whenever a person is charged with a felony during the commission of which he displays, uses, threatens, or attempts to use any weapon or firearm, the felony for which he is charged shall be reclassified....

...The enhanced sentence of fifteen years is accordingly vacated. ROBERT P. SMITH, Jr., J., concurs. WENTWORTH, J., specially concurs, with opinion. WENTWORTH, Judge, specially concurring. I concur in the result reached by the majority for the reason that § 775.087(1), Florida Statutes, is expressly inapplicable *811 when "the use of a weapon or firearm is an essential element" of the substantive offense....

...ated assault, established by proof of an assault with a firearm. § 784.021(1)(a), Florida Statutes. The use of a weapon or firearm is an essential element of § 784.021(1)(a); such an aggravated assault is already an "enhanced penalty" offense, and § 775.087(1) may not be applied to enhance the sentence for a violation of § 784.021(1)(a)....

...Williams v. State, 358 So.2d 187 (Fla. 4th DCA 1978). Since it was necessary to prove such an aggravated assault in order to establish the felony murder in this case, the elements of § 784.021(1)(a) were thus essential to this felony murder conviction, and § 775.087(1) is therefore inapplicable. Without deciding the constitutional issue presented, I note that § 775.087(1) does not create a separate offense, but merely enhances the penalty for the original crime, due to aggravating circumstances....

...to perpetrate, any felony other than arson, sexual battery, robbery, ..." The aggravated assault in the case at bar, was indispensable to Harper's murder conviction, and was subject to challenge. State v. Pinder, 375 So.2d 836 (Fla. 1979). [3] Sec. 775.087(1), Fla....

...Upon hearing the facts of the incident, the trial court observed that this was a "10-20-life case." [1] In response, the State indicated that it would not appeal the *1223 agreed upon sentence if imposed, despite the minimum mandatory sentence mandated by section 775.087(2), Florida Statutes (2000)....

...Since he used a gun during the felony, it was reclassified as a first degree felony and it was punishable by 30 years in prison. See section 775.082, Fla. Stat. (2000). Since the Defendant discharged the gun during the aggravated battery, he was also subject to a 20 year mandatory minimum pursuant to § []775.087(2)(a)(2)....

...nying the motion to correct sentence was properly denied. The State's argument fails for several reasons. The State incorrectly argues that Thomas's aggravated battery with a deadly weapon charge was reclassified to a first-degree felony pursuant to section 775.087(1)(b), Florida Statutes (2000). In relevant part, section 775.087(1)(b) provides: 775.087 Possession of use of weapon; aggravated battery; felony reclassification; minimum sentence.— (1) Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an esse...

...The crime of aggravated battery, generally a second-degree felony under section *1224 784.045(2), is committed when a defendant: (1) causes great bodily harm, permanent disability, or disfigurement; or (2) uses a deadly weapon. The offense of aggravated battery is reclassified as a first-degree felony pursuant to 775.087(1)(b) when the crime involves a deadly weapon or firearm, unless "the use of a weapon or firearm is an essential element" of the charge. § 775.087(1)(b), Fla....

...The impact of the 10-20-life statute is more problematic because the information filed by the State adequately alleged Thomas's use of a firearm. That allegation, along with the facts put forth by the State during the plea dialogue required the court to impose the twenty-year minimum prison term mandated by section 775.087(2)....

...rized sentence. If the State chooses the latter option, the matter may then proceed to trial and any lawful sentence supported by the evidence and the jury's findings may be imposed. REVERSED AND REMANDED. THOMPSON and MONACO, JJ., concur. NOTES [1] Section 775.087(2), Florida Statutes, is generally referred to as the "10-20-life" statute....

...Darrow appeals from his ten-year sentence he received, after pleading nolo contendere to attempted robbery with a firearm. He sought to be sentenced as a Youthful Offender and all parties agree he met the required criteria. However, the trial court ruled the 1999 revision to section 775.087(2)(a) (known as the 10-20-life statute) superseded the Youthful Offender Act and mandated that the court impose a sentence pursuant to the statute....

...o a truck and drive it to a different location, where he was held for a few hours then released. After his conviction on the foregoing charges, a guidelines scoresheet was prepared using kidnapping as the "primary offense at conviction." Pursuant to Section 775.087(1)(a), Florida Statutes, whenever a person is charged with a felony and during the commission thereof carries, displays, uses, threatens or attempts to use any weapon or firearm, the felony with which the person is charged shall be reclassified, in the case of a felony of the first degree, to a life felony. Kidnapping is a first degree felony punishable by life and, pursuant to the foregoing provision, was scored as a life felony. Section 775.087(2)(a), Florida Statutes, states in pertinent part that any person who is convicted of kidnapping and who had in his possession a firearm shall be sentenced to a minimum term of imprisonment of three years....

...With regard to the reclassification of the first degree felonies of kidnapping to life felonies, Jones argues that kidnapping is not a first degree felony, but a distinct classification of felony which he terms "first degree punishable by life." Jones contends that, because Section 775.087(1)(a) does not provide for reclassification of a "first degree felony punishable by life," the reclassification herein was error....

...Therefore, there was no error in the reclassification of the first degree felonies of kidnapping to life felonies based on Jones' use of a firearm. Jones further alleges, however, that the trial court erred in making consecutive the minimum mandatory sentences prescribed by Section 775.087(2)(a) and imposed on the armed robbery and kidnapping counts....

...The trial court assessed eighteen additional sentencing points for possessing a firearm during the commission of the possession offense. Under rule 3.702(d)(12) of the Florida Rules of Criminal Procedure, additional sentencing points for possession of a firearm may not be assessed against offenses enumerated in section 775.087(2), Florida Statutes (1993). Attempted murder is one of the enumerated offenses in section 775.087(2); therefore, it is not subject to enhancement under rule 3.702....

...ng a firearm is too harsh, so the majority's substitutes its judgment on the issue for that of the legislature. I believe that it is wrong for this Court to ignore that the legislature decided to include "any felony other than those enumerated in subsection 775.087(2)." This does not provide a basis for this Court to construe this as "any felony other than those enumerated in subsection 775.087(2)" and those felonies which the Supreme Court decides should be excepted out of the statute....

...Mitchoun Alusma appeals the denial of his rule 3.850 motion for post-conviction relief. Alusma argued, in part, that his trial attorney provided ineffective assistance of counsel by failing to object to the reclassification of his kidnapping convictions based on the use of a firearm pursuant to section 775.087, Florida Statutes (1993)....

...Based on the supreme court's decision in Cruller, therefore, we reject Brown's double jeopardy claim. Brown next argues that the trial court erred in enhancing the degree and offense level of the aggravated battery conviction pursuant to the weapon enhancement provision in section 775.087(1)(b), Florida Statutes (1999)....

...ntence imposed on any other count must be run concurrent with the life sentence. We reject without discussion the other issues raised by Brown on appeal. Reversed and remanded. STRINGER, J., and THREADGILL, EDWARD F., Senior Judge, Concur. NOTES [1] Section 775.087(1), Florida Statutes (1999), provides that whenever a person is charged with a felony, except for a felony in which the use of a weapon or firearm is an essential element of the offense, if the defendant used, carried, or displayed a weapon during the commission of the felony, then the offense shall be reclassified. A second-degree felony shall be reclassified to a first-degree felony. See § 775.087(1)(b). On the Criminal Punishment Code scoresheet, the offense shall be ranked one level higher than is provided in the offense ranking chart. See § 775.087(1).

...reating doctor's direct testimony regarding the victim's injuries. We, therefore, conclude that the error was harmless in this case. As to the sentence imposed, Bogdanon argues that the trial court erred in utilizing the deadly weapon enhancement in section 775.087(1)(b), Florida Statutes (1997), because the use of a weapon was an essential element of the offense. The trial court utilized the deadly weapon enhancement to increase the crime from a second to a first degree felony. Section 775.087(1)(b) precludes reclassification if the crime charged requires the use of a weapon as one of its elements....

...In its order denying relief on this claim, the trial court opined that, although appellant was convicted of a first degree felony (armed robbery), which would allow for a youthful offender sentence, the first degree felony was reclassified to a life felony pursuant to section 775.087(1), Florida Statutes (2003), which mandates reclassification in the following circumstances: (1) Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is...

...lony. (Emphasis added). It appears this denial was in error for several reasons. First, the trial court appears to have confused which subsection of the 10/20/life statute applied to appellant. Specifically, the trial court appears to have relied on section 775.087(1), Florida Statutes (2003), to support its finding that appellant was convicted of a life felony, and thus, not eligible for youthful offender sentencing....

...e by imprisonment for a term of years not exceeding life imprisonment or as provided in s. 775.082, s. 775.083, or s. 775.084. (Emphasis added). Thus, appellant was convicted of a crime in which the use of a weapon was an essential element. As such, section 775.087(1)'s reclassification requirement would not apply to appellant, and the trial court was in error to conclude otherwise. See Williams v. State, 850 So.2d 656 (Fla. 1st DCA 2003) (holding offense of attempted armed robbery could not be enhanced pursuant to section 775.087(1) because use of a weapon is an essential element of the offense); Tripp v. State, 610 So.2d 1311, 1312 (Fla. 1st DCA 1992) (reversing reclassification of attempted armed robbery pursuant to section 775.087(1) because the use of a weapon was an essential element of the underlying offense)....

...A life felony carries a minimum sentence of 30 years' imprisonment. § 775.082(3)(a)(1), Fla. Stat. (2003). Thus, the record reflects appellant was not sentenced to a life felony. However, appellant's sentence was enhanced through the imposition of a ten year minimum mandatory pursuant to section 775.087(2)(a), Florida Statutes (2003), which requires the imposition of a ten year minimum mandatory where an individual is convicted of armed robbery due to his use of a firearm....

...ence; and five years for the third-degree felony aggravated assault, concurrent with the sexual battery sentences. Kidnapping is a first-degree felony. § 787.01(2). Mr. Jackson's use of a firearm resulted in a reclassification to a life felony. See § 775.087(1)(a), Fla....

Mr. Starks.” Under defense counsel’s view, section 775.087(2)(a)3., Florida Statutes (2009), should not

...Appellant was found guilty by a jury of multiple offenses including attempted second degree murder with a firearm. On this count, the trial court sentenced him to twenty-five years in prison with a twenty-five year mandatory minimum for the use of a firearm, pursuant to section 775.087, Florida Statutes (1999)....

...IN WELLER v. STATE [State v. Weller], 590 So.2d 923 (FLA.1991), WHICH REQUIRES THE TRIAL JUDGE TO INSTRUCT THE JURY ON MINIMUM MANDATORY SENTENCES, APPLY TO CASES WHERE A MINIMUM MANDATORY SENTENCE OF THREE CALENDAR YEARS MUST BE IMPOSED PURSUANT TO SECTION 775.087(2)(a), FLORIDA STATUTES (1991)? Knight v....

...(1991), and shooting at or into a building, see § 790.19, Fla.Stat. (1991). At the trial, Knight requested that the trial court instruct the jury that he would receive a three-year minimum mandatory sentence if the jury found that he used a firearm in the aggravated assault. See § 775.087(2)(a), Fla.Stat....

...The jury found that Perry actually possessed a firearm during the course of the armed kidnapping and the carjacking. For his possession of a firearm, the trial court imposed a ten-year mandatory minimum for armed kidnapping and a consecutive ten-year mandatory minimum for carjacking with a firearm. Case law interpreting section 775.087(2)(d), Florida Statutes, holds that imposition of consecutive mandatory minimum sentences of any duration is prohibited in a case involving a single criminal episode during which a *1290 firearm is used but not fired....

...And, attempted second degree murder requires proof of an act which could have resulted in death—an element not required for aggravated battery. AFFIRMED. ORFINGER, J., and COBB, W.H., Senior Judge, concur. NOTES [1] § 784.045(1)(a)1. and 2., Fla. Stat. [2] § 782.04(2); § 777.04; § 775.087, Fla....

...Davis, Assistant Public Defender, Daytona Beach, for Appellant. Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Appellee. SHARP, W., J. Koch appeals his sentence of 20 years in prison, imposed pursuant to section 775.087(2)(a)2., after a jury found him guilty of aggravated battery. [1] Section 775.087(2)(a)2 provides that if a defendant is convicted of having committed any one of a list of violent felonies (including aggravated battery), and regardless of whether the use of a weapon is an element of the felony, if: [D]uring the cou...

...Koch was charged by an information which simply alleged he had committed aggravated battery (deadly weapon) by "actually and intentionally" touching and striking the victim against his will and in doing so "used a firearm." Later the information was amended to add a reference to section 775.087(2), but no additional language was added....

...State, 855 So.2d 675 (Fla. 2d DCA 2003), the court reversed a conviction for aggravated assault because it was not a lesser included offense of attempted murder. In so doing, it said that in order for a minimum mandatory 20 year sentence to be imposed under section 775.087(2)(a)2, the jury must make a specific finding that a firearm was discharged during the aggravated assault....

...State, 726 So.2d 768 (Fla.1999) (mandatory minimum sentence upheld where both the information and the verdict form expressly stated the defendant used a firearm). In Altieri v. State, 835 So.2d 1181 (Fla. 4th DCA 2002), the court quashed a 20-year sentence imposed pursuant to section 775.087(2)(a)2, because the information alleged the defendant only "used" a deadly weapon—not that he discharged it....

...However, the court ruled that the finding did not "cure" the lack of notice problem. Cf. Bryant v. State, 744 So.2d 1225 (Fla. 4th DCA 1999); Gibbs v. State, 623 So.2d 551 (Fla. 4th DCA 1993). The state argues that because the information in this case was amended to include a reference to section 775.087(2)(a)2, that Koch was "on notice" he faced a 20-year sentence....

...t reverse the 20-year sentence and remand for resentencing. On remand, we agree with both the state and Koch that because the aggravated battery offense was based on use of a deadly weapon or firearm, this crime cannot be additionally enhanced using section 775.087(2)(a); because the weapon is an essential element of the crime....

...ically found that Adams' use and discharge of a firearm caused the victim great bodily harm, permanent disability, or permanent disfigurement. The trial court sentenced Adams to a minimum mandatory term of twenty-five years' imprisonment pursuant to section 775.087(2)(a)(3), Florida Statutes (2001)....

...The information failed to allege that Adams discharged a firearm. The information alleged only that Adams "used and actually possessed a firearm during the commission of the offense." The trial court improperly enhanced Adams' sentence for discharging a firearm under section 775.087(2)(a)(3), because the grounds for enhancement of a sentence must be charged in the information. Whitehead v. State, 884 So.2d 139, 140 (Fla. 2d DCA 2004). "An allegation of `use' of a firearm will not sustain an enhanced sentence under section 775.087(2)(a)(3) because a firearm may be used to inflict serious bodily injury without being discharged, and the statute requires that the weapon be discharged for the enhancement to apply." Rogers v....

...information. Whitehead, 884 So.2d at 140. Adams' minimum mandatory sentence is illegal because the information did not include the grounds for enhancement. Accordingly, we reverse and remand for the trial court to resentence Adams in accordance with section 775.087(2)(a)(1)....

...In this appeal, Arutyunyan contests both his convictions and his sentence. We affirm the convictions, [1] but find merit in appellant's challenge to his sentence. Arutyunyan discharged a firearm in the commission of the attempted murder of *412 Officer John Curry. Consequently, pursuant to the 10/20/life statute, section 775.087(2)(a)2., Florida Statutes (2002), the trial court was required to impose a twenty-year mandatory minimum sentence....

...However, the State's position was in error. Subsection (2)(d) of the 10/20/life statute states that "[t]he court shall impose any term of imprisonment provided for in this subsection consecutively to any other term of imprisonment imposed for any other felony offense." § 775.087(2)(d)....

...3d DCA 2002)(emphasis in original); see also Stafford v. State, 818 So.2d 693, 694-95 (Fla. 5th DCA 2002)(expressly adopting the reasoning on this issue set forth in Mondesir ). Arutyunyan was being sentenced for felonies tried within a single prosecution. Thus, section 775.087(2)(d)'s directive regarding consecutive sentencing has no application, leaving the court free to choose whether the mandatory minimum sentence should run consecutive to or concurrent with the sentences imposed for counts II and III. Since the trial court was expressly operating under the belief that section 775.087(2)(d) required consecutive sentencing, we reverse the sentence imposed and remand to allow the judge the opportunity to consider the option of concurrent sentencing....

...It was also independent of kidnaping and not inherent in its nature. Second, Maxwell argues that the trial court erred in applying the Prison Releasee Reoffender sentencing enhancement provisions in addition to the weapon enhancement provisions of section 775.087(1) to counts two (aggravated battery with a weapon) and five (kidnaping)....

...s and sentences for offenses arising from a single episode. Boler v. State, 678 So.2d 319, 321 (Fla.1996). The weapons use statute is an enhancement statute. Wright v. State, 767 So.2d 576 (Fla. 5th DCA 2000), rev. granted, 789 So.2d 352 (Fla.2001). Section 775.087(1) enhances the potential sentence rather than creating a new substantive offense....

...State, 763 So.2d 537 (Fla. 4th DCA 2000). Third, Maxwell argues a double jeopardy violation occurred with regard to his enhanced kidnaping conviction, because he was convicted of kidnaping in the commission of aggravated battery on Charles with a weapon pursuant to section 775.087(1), (count five), and he was also convicted of an aggravated battery using the same weapon against the same victim in the same criminal episode (count six). Section 775.087 provides: Possession or use of weapon; aggravated battery; felony reclassification; minimum sentence (1) Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or fir...

...(emphasis added) Maxwell argues the enhancement of the kidnaping charge was improper, citing Bradham v. State, 657 So.2d 40, 41 (Fla. 1st DCA 1995). In Bradham, the defendant was convicted of kidnaping and committing an aggravated battery during the commission of one criminal offense. His kidnaping was reclassified under section 775.087(1) as a life felony and he was also convicted of an aggravated battery under section 784.045(1)(a)1....

...odily harm), as charged. ____ B. The defendant is guilty of Aggravated Battery with a Firearm (Discharging a Firearm). *471 ____ F. The defendant is guilty of Battery. ____ G. The defendant is not guilty. The jury chose option A on the verdict form. Section 775.087(1) requires that a second-degree felony be reclassified to a first-degree felony when a weapon or firearm is used to commit the felony, except a felony in which the use of a weapon or firearm is an essential element. The statute applies when the conviction is for certain listed crimes, one of which is aggravated battery. See § 775.087(2)(a)(1)(g)....

...State, 944 So.2d 1026, 1027 (Fla. 1st DCA 2006) ("[B]ecause it is unclear whether appellant was found guilty of aggravated battery based on great bodily harm or the use of a deadly weapon, enhancement of his sentence for the use of a deadly weapon pursuant to section 775.087(1), Florida Statutes, was not permissible.")....

...Even if defense counsel should have asked for a better verdict form, I conclude this one legally permitted the judge to enter the enhanced conviction challenged on appeal. I therefore dissent from this opinion. NOTES [1] See § 784.045, Fla. Stat. (2006). [2] See § 775.087(1), Fla....

...Intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement; or 2. Uses a deadly weapon. [5] Although Mr. Webb's conviction and resulting sentence must be reduced again to a second-degree felony, subsections 775.087(2)(a)(3) and (2)(c) still require a minimum mandatory term of twenty-five years, regardless of the statutory maximum for this level of crime.

than life pursuant to the 10-20-Life statute, section 775.087(2)(d), Florida Statutes, and did not exercise

...The defendant, Juan Delgado, appeals a statutory ten-year minimum mandatory sentence for two counts of armed robbery with a firearm. We affirm the conviction and sentence on each count of armed robbery including the ten-year minimum mandatory for actually possessing a firearm in violation of section 775.087(2), Florida Statutes (2005)....

..."The test for granting relief based upon a defect in the charging document is actual prejudice." State v. Gray, 435 So.2d 816, 818 (Fla.1983). Juan Delgado and a codefendant were charged in one information with committing two counts of armed robbery with a firearm or destructive device in violation of sections 812.13(2)(A), 775.087 and 777.011, Florida Statutes (2005), as follows: COUNT 1 ROLANDO PEREZ and JUAN ELIECER DELGADO, on or about June 30, 2007, in the County and State aforesaid, did unlawfully, by force, violence, assault or putting in fear, take certain prope...

...th the intent to temporarily or permanently deprive the above-named owner(s) or custodian(s) of the said property, and during the commission of the offense, said defendant possessed a firearm or destructive device in violation of s. 812.13(2)(A) and 775.087 and s....

...th the intent to temporarily or permanently deprive the above-named owner(s) or custodian(s) of the said property, and during the commission of the offense, said defendant possessed a firearm or destructive device in violation of s. 812.13(2)(A) and 775.087 and s. 777.011, Fla. Stat., contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida. Section 775.087(2), Florida Statutes (2005) states that a person convicted of a felony, who, during the commission of the felony, "actually possess[es] a firearm or destructive device ......

...ery. The robbery with a firearm charges therefore apply to both defendants. The text of the information refers to both defendants by name, and charges that "said defendant possessed a firearm or destructive device in violation of s. 812.13(2)(A) and 775.087 and s....

...In this case, the phrase, "said defendant," includes the phrase, "said defendants." § 1.01, Fla. Stat. (2009) ("In construing the statutes in each and every word, phrase or paragraph, where the context will permit: (1) the singular includes the plural and vice versa."). Therefore, the minimum mandatory provisions of section 775.087(2) apply to both defendants....

...The information sufficiently alleges the essential elements of armed robbery, adequately advises the defendant of the charges against him, see Price v. State, 995 So.2d 401 (Fla.2008), and is sufficiently clear to charge the grounds for enhancement. See § 775.087(2), Fla....

...3.800(a), Florida Rules of Criminal Procedure. Of the several claims raised by Valentin, [1] only one entitles him to the relief requested. In that claim, Valentin contends that the consecutive three-year minimum mandatory terms imposed pursuant to section 775.087(2), Florida Statutes (1997), for the crimes he committed—felony murder with a special jury finding that Valentin carried a firearm in the commission of the crime and attempted armed robbery with a firearm—constituted an illegal sentence because the two offenses occurred during a single criminal episode....

...nst the defendant in Downs for his first-degree felony murder conviction was the statutorily required penalty for capital murder, whereas his consecutive three-year minimum mandatory term for aggravated assault was a sentence enhancement pursuant to section 775.087(2), Florida Statutes, based on his use of a firearm during the commission of the aggravated assault. Thus, the statutory bases for the minimum mandatory terms in Downs derive from different statutes addressing different evils: section 775.082(1), Florida Statutes (1993), which prohibits the killing of another human being, and section 775.087(2)(a), Florida Statutes (1993), which prohibits the use of a firearm during the commission of a crime....

...dition to the three-year minimum mandatory sentence for the noncapital offense, the consecutive three-year sentences would be prohibited. In the instant case, the only minimum mandatory sentences imposed on Valentin were the three-year variety under section 775.087(2), Florida Statutes (1997)....

...which is the primary evil addressed by the statute. Therefore, Downs does not apply here, and we must resolve the issue raised by Valentin in accordance with precedent that addresses the issue of consecutive minimum mandatory sentences imposed under section 775.087(2). [3] A general rule has emerged from a trilogy of decisions rendered by the Florida Supreme Court: the imposition of consecutive minimum mandatory sentences under section 775.087(2), Florida Statutes *320 (1997), is improper where the offenses occurred during a single criminal episode unless the defendant discharges the firearm and injures multiple victims or causes multiple injuries to one victim....

...o a higher degree felony due to the use of the firearm. [2] Valentin was sentenced to life imprisonment for his first-degree felony murder conviction and a consecutive term of 57.5 months' imprisonment for his attempted armed robbery conviction. [3] Section 775.087(2) was amended in 1999 and now bears the moniker "10-20-life statute." See Elozar v. State, 872 So.2d 934 (Fla. 5th DCA 2004). We note that Valentin committed his crimes in 1997 to signify that the provisions of section 775.087(2)(d), Florida Statutes, that were enacted in 1999 do not apply here, although we do not believe that the outcome would be any different under the amended statute....

...in a case where there was no independent forcible felony charged, we grant the petition. Mr. Bertke was tried and convicted of aggravated battery with a firearm, and sentenced to state prison for a minimum mandatory period of twenty-five years. See § 775.087(2)(a)3., Fla....

consecutive terms based on the 10/20/Life law. See § 775.087, Fla. Stat. Hester appealed in both cases, and

...However, we reverse and remand appellant's sentence. Appellant was given two life sentences for these convictions as a Prison Releasee Reoffender pursuant to section 775.082(9)(a)3, Florida Statutes ("PRRPA"). Appellant was also given two ten-year mandatory minimum sentence pursuant to section 775.087(2)(a), *1055 Florida Statutes ("10-20-Life")....

...We find no merit in Blanchard's remaining issue. Given the wording of the amended information and the jury finding *575 that the defendant possessed a weapon, the burglary conviction was properly reclassified and scored as a first degree felony pursuant to section 775.087(1), Florida Statutes....

...of the firearm, we must vacate his conviction and sentence on the charge of possession of a firearm in the commission of a felony. The defendant was charged with committing the crimes of carjacking with a firearm in violation of sections 812.133 and 775.087(2) of the Florida Statutes (2000), burglary of dwelling with a firearm in violation of sections 810.02 and 775.087(2) of the Florida Statutes (2000), aggravated assault with a firearm in violation of sections 784.021(1)(a) and 775.087(a) of the Florida Statutes (2000), possession of a firearm in the commission of a felony, to wit: burglary or carjacking, in violation of section 790.07(2) of the Florida Statutes (2000), and petit theft in violation of section 812.014(3)(a) of the Florida Statutes (2000)....

...concurrent term of 40 years imprisonment, on count III to a concurrent term of 5 years imprisonment, and on count IV to a concurrent term of 5 years imprisonment. The court also enhanced the defendant's sentence, in accordance with the provisions of section 775.087(2) of the Florida Statutes (2000), by ordering the defendant to serve a 10 year mandatory minimum on count I, a 10 year mandatory minimum sentence on count II, and a 3-year mandatory minimum sentence on count III....

...s single act of possessing a firearm during the commission of his crimes could not properly form the basis for both (1) reclassifying and enhancing his sentences for armed carjacking, armed burglary, and aggravated assault with a firearm pursuant to section 775.087(2) of the Florida Statutes (2000); and (2) imposing a separate conviction for possession of a firearm during the commission of a felony pursuant to section 790.07(2) of the Florida Statutes (2000)....

...rearm. Upon this enhancement Cleveland was punished for all the elements contained in section 790.07(2) and appropriately sentenced. Id. at 1146. Thus, our Supreme Court has determined that when a felony conviction is reclassified and enhanced under section 775.087(2) of the Florida Statutes (2000) due to the defendant's use of a firearm in committing a crime, the single act of using that same firearm in the commission of the same felony cannot form the basis of a separate sentence and convictio...

..., as two offenses stemmed from defendant's single act involving use of same firearm in same attempted robbery). Since the instant record demonstrates that the defendant's carjacking and burglary convictions were enhanced and reclassified pursuant to section 775.087(2) under Cleveland, the defendant's conviction and sentence for possession of a firearm in the commission of a felony must be vacated....

...The trial court declined to impose youthful offender sanctions and sentenced appellant to thirty years in prison with the ten-year mandatory minimum under the 10-20-LIFE law based on his possession of a firearm. In this rule 3.800(a) motion, appellant argued that the ten-year mandatory minimum term imposed under section 775.087(2)(a), Florida Statutes, was unlawful because this statute was not cited in the information and because the information alleged use of a deadly weapon or *913 firearm....

...ion was addressed at the hearing on the rule 3.800(b)(2) motion. While it was not argued in the direct appeal, this argument is without merit. Bundrage v. State, 814 So.2d 1133, 1135 n. 1 (Fla. 2d DCA 2002) ("An information does not have to refer to section 775.087 for the enhancement to apply, see Bryant v....

...We affirm the trial court's denial of all five claims. We write to address two of the claims and sit en banc to recede from a series of prior decisions by this court which the state has shown are clearly contrary to the plain meaning and legislative intent of the 10-20-LIFE statute. § 775.087, Fla....

...§ 775.082(9)(b), Fla. Stat. (2000). In addition to these mandatory minimum life sentences as a PRR, the trial court imposed concurrent ten-year mandatory minimum sentences on these counts for McDonald's possession of a firearm during the offenses. § 775.087(2)(a)1, Fla....

...In McDonald's case, the 10-20-LIFE statute's express provisions require that the mandatory minimum terms of incarceration be included even where those terms are less than the sentence authorized under the PRR statute or any other provision of law. Section *76 775.087(2)(a)3(c), Florida Statutes (2000), provides: If the minimum mandatory terms of imprisonment imposed pursuant to this section exceed the maximum sentences authorized by s....

...tempt to use firearms or destructive devices be punished to the fullest extent of the law, and the minimum terms of imprisonment imposed pursuant to this subsection shall be imposed for each qualifying felony count for which the person is convicted. § 775.087(2)(a)3(d), Fla....

...in fact, Lou Joseph [Defendant] did discharge said firearm during the course of committing said Burglary and as a result of said discharge, great bodily harm was inflicted upon Luc Patrick ALEXANDRE, contrary to F.S. 810.02(1), F.S. 810.02(2) and F.S. 775.087(2)[.] (Emphasis added)....

...On remand the State may prosecute McClenithan for the offense of aggravated assault or any lesser offense, but he may not be retried for attempted first-degree murder. See Gaston, 682 So.2d at 581. McClenithan also argues that the twenty-year minimum mandatory sentence imposed for the aggravated assault pursuant to section 775.087(2)(a)(2), Florida Statutes (2001) (the 10/20/Life statute), was erroneous....

...Public Defender, Tallahassee, for appellant. Jim Smith, Atty. Gen., and John W. Tiedemann, Asst. Atty. Gen., Tallahassee, for appellee. ZEHMER, Judge. Appellant was charged with burglary of a dwelling and possession of a firearm during the burglary in violation of § 810.02 and § 775.087(2), Florida Statutes (1981). Following his nolo contendere plea, appellant was adjudged a youthful offender under Chapter 958, Florida Statutes (1981), and sentenced to three years minimum mandatory imprisonment in accordance with § 775.087(2)....

...[2] After the state announced it had no objection to so treating appellant in this case also, the trial court adjudged appellant a youthful offender and proceeded to sentence him, over a somewhat ambiguous objection by appellant's counsel, to three years minimum mandatory imprisonment pursuant to § 775.087(2), to run concurrently with the sentences of imprisonment imposed in the other two cases. This appeal followed. Appellant argues that the facts recited are not legally sufficient to authorize imposition of the three-year mandatory sentence under § 775.087(2), citing Sanders v....

...1st DCA 1979), quashed on other grounds, 395 So.2d 520 (Fla. 1981). In Sanders, supra, the defendant was found guilty of burglary of a dwelling while armed with a firearm and theft of the same firearm. He was sentenced to a mandatory three-year minimum term pursuant to § 810.02 and § 775.087(2)....

...Accordingly, this case is governed by our decisions in Sanders and Wilson. In addition, on our own initiative, we also find it necessary to address the *110 fundamental error [3] in the trial court's having sentenced appellant to three years mandatory imprisonment under § 775.087(2) after adjudging him a youthful offender pursuant to Chapter 958. Even though it was absolutely discretionary with the trial court whether to adjudge appellant a youthful offender, once the court determined to do so, it was error to impose the three-year mandatory sentence under § 775.087(2) because of the provisions in § 958.021 and § 958.05, Florida Statutes (1981)....

...2d DCA 1982); Cochran v. State, 410 So.2d 595 (Fla. 2d DCA 1982). For the foregoing reasons, we reverse and vacate the sentence. The case is remanded for resentencing of appellant consistent with this opinion. ROBERT P. SMITH, Jr. and WENTWORTH, JJ., concur. NOTES [1] Section 775.087(2) provides in part: Any person who is convicted of any ......

...e information alleged only that defendant "carried" a firearm, and statute also contained other provisions, including ten-year minimum mandatory sentence for possession of a firearm). Inmon, however, involved sentencing under the 10/20/life statute, section 775.087(2), Florida Statutes, and is distinguishable from this case because "[t]he factors relevant to sentencing under various versions of section 775.087(2) have been treated as `essential elements'" of the crime charged....

...earm, and count two, aggravated assault with a firearm. On count one, third degree murder is a second degree felony. § 782.04(4), Fla. Stat. (1993). The trial court enhanced the crime to a first degree felony on account of the use of a firearm. Id. § 775.087(1)....

...We affirm appellant's convictions and sentences with the exception of the three-year mandatory minimum sentence. The state concedes and we agree that the trial court erred when it sentenced appellant to a three-year mandatory minimum sentence for shooting into an occupied dwelling. Section 775.087(2), Florida Statutes (1991) does not apply to a conviction for shooting *916 into an occupied dwelling....

...[1] We affirm the judgment and sentence imposed on Count III without further comment, as we reject Redding's argument that the trial court erred by denying his motion for judgment of acquittal on that count. We reverse the three-year minimum mandatory sentence that was imposed on Count I pursuant to section 775.087(2)(a)1., Florida Statutes (2006), because the State presented no evidence whatsoever that Redding carried the firearm on his person....

...5th DCA 2007), this court applied our previous decision in Johnson and explained: The defendant's conviction for possession of a firearm by a convicted felon is affirmed. However, we remand for a corrected sentence. The trial court erroneously believed the three-year mandatory minimum sentence contained in section 775.087(2)(a)1.r., Florida Statutes, for actual possession applied here....

...Freeland, Assistant Attorney General, Tampa, for Appellee. *491 PER CURIAM. Wilson Osorio appeals his sentence of 230 months' imprisonment for third-degree murder. Mr. Osorio contends that the trial court improperly reclassified this offense pursuant to section 775.087(1), Florida Statutes (1997), because the use of a firearm was an element of the charged offense....

...Osorio to the maximum scoresheet sentence of 230 months. Third-degree murder is a second-degree felony and a level 8 offense. See § 921.0012(3), Fla. Stat. (1997). The State argues that the level 9 classification on the scoresheet was the result of reclassification based upon section 775.087(1), which allows reclassification for use of a weapon or firearm....

...As to the attempted first degree murder charge, first degree murder is a capital felony pursuant to section 782.04(1), Florida Statutes (2002). It is reduced as an attempt to a first degree felony pursuant to section 777.04, Florida Statutes (2002). It is then reclassified to a life felony for use of a firearm pursuant to section 775.087(1)(a), Florida Statutes (2002)....

...Statutes (2002). Section 777.04, Florida Statutes (2002), reduces the first degree felony from a conspiracy to a second degree felony. The second degree felony is then reclassified to a first degree felony for use of a weapon or firearm pursuant to section 775.087(1)(a), Florida Statutes (2002)....

...Chase challenges the circuit court's exclusion of certain impeachment evidence about a State witness. This argument is without merit and does not warrant further discussion. Mr. Chase also argues that the circuit court improperly reclassified his offense from a second-degree felony to a first-degree felony under section 775.087(1), Florida Statutes (2009)....

...On appeal, the State concedes error. We agree with the parties that the circuit court erred in reclassifying Mr. Chase's offense. "[W]hen a defendant is charged with a felony involving the `use' of a weapon, his or her sentence cannot be enhanced under section 775.087(1) without evidence establishing that the defendant had personal possession of the weapon during the commission of the felony." State v. Rodriguez, 602 So.2d 1270, 1272 (Fla.1992); see also Porter v. State, 737 So.2d 1119, 1119 (Fla. 2d DCA 1999) (citing Rodriguez for the proposition "that section 775.087(1) does not permit vicarious enhancement")....

...Chase's conviction for aggravated battery with great bodily harm and the use of a deadly weapon. On remand, the circuit court shall correct the judgment to reflect Mr. Chase's conviction for a second-degree felony. We reverse Mr. Chase's sentence and remand for resentencing without reclassification under section 775.087(1)....

...s being a reference to the offense of aggravated battery. The original information on the sexual battery charge alleged in part that the defendant "used actual physical force likely to cause serious personal injury, in violation of § 794.011(3) and § 775.087, Fla. Stats...." While section 775.087, Florida Statutes, is most frequently invoked in cases involving possession or use of a weapon, section 775.087 also provides for an enhanced penalty where, during the commission of a felony, "the defendant commits an aggravated battery. . . ." § 775.087(1), Fla. Stat. (1999). In the present case, there was no allegation or contention that the defendant possessed or used a weapon during the sexual battery offense. By process of elimination, the citation of section 775.087 (which is juxtaposed to an allegation that the defendant "used actual physical force likely to cause serious personal injury") can only be a reference to the aggravated battery enhancement contained within section 775.087....

...st stated. The defense reasons that since the previous panel ruled that the original sexual battery charge was missing an essential element of the offense of aggravated battery, it is impermissible for this court now to consider that the citation of section 775.087 was necessarily a reference to the offense of aggravated battery....

...Accordingly we reverse the dismissal order and remand with directions to reinstate the charge. Reversed and remanded for further proceedings consistent herewith. NOTES [1] The false imprisonment charge remains pending. [2] On its own motion, this court raised the question regarding the meaning of the citation to section 775.087 in the original information and requested additional briefing from the parties on that point.

...ount four). Mr. Taylor was sentenced to concurrent terms of 210 months in prison with consecutive three-year minimum mandatory terms imposed on counts one and four as a result of his possession of a firearm during the commission of the offenses. See § 775.087(2), Fla....

experts who evaluate defendants for 1 § 775.087, Fla. Stat. (2015).

...tence. He contends that the trial court erred by failing to vacate the portion of his sentence which imposed a three year minimum mandatory term of incarceration because the information did not specifically charge the mandatory minimum provisions of section 775.087(2), Florida Statutes (1991)....

...The information charged Staton with kidnapping and that: ... during the commission of said kidnapping, MICHAEL LEE STATON carried, displayed, used, threatened or attempted to use a weapon or firearm, to wit: A handgun-type firearm, in violation of Florida Statutes 787.01(1) and 775.087(1); Staton entered a plea of nolo contendere to this charge after the following transpired at the sentencing hearing: THE COURT: Did you [sic] attorney tell you the maximum sentence you could receive for these charges? DEFENDANT: Yes, he did, your Honor......

...he employment of a firearm. The information alleged that Staton carried a firearm while he was committing the crime of kidnapping and that is all that is required in order to incur the penalty of a three year minimum mandatory if conviction results. Section 775.087(2), Florida Statutes, simply imposes a penalty for a conviction in the same manner as the penalties described in section 775.082, Florida Statutes....

minimum twenty-five years in prison under section 775.087(2)(a), Florida Statutes (2013) (known as the

...Attempted second-degree murder is thus a second-degree felony, punishable by no more than fifteen years' imprisonment. §§ 777.04(4)(c), 775.082(3)(c), Fla. Stat. (1999). Because Mr. Sousa was charged with committing these crimes while using a firearm, the offense was reclassified as a first-degree felony. § 775.087(1)(b)....

...The maximum term of imprisonment for a reclassified first-degree felony, without some special sentencing enhancement, is thirty years' imprisonment. § 775.082(3)(b). Because Mr. Sousa clearly discharged his firearm during the commission of both of these crimes, causing great bodily harm to his victims, [2] he was subject to section 775.087(2)(a)(3) of the 10/20/life statute, which required that he be sentenced "to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison." It could be argued that the language of...

...risonment. Nothing in this opinion should be interpreted to affect the mandatory minimum terms, totaling fifty-three years' imprisonment, or the sentence for aggravated assault. Reversed and remanded. SILBERMAN and LaROSE, JJ., Concur. NOTES [1] See § 775.087(2)(a)(3), Fla....

ten-year minimum mandatory term under Fla. Stat. § 775.087(2)(a)(i) because the State's charging document

...and affirm Brady's conviction of second degree murder. However, the State concedes the trial court erred in dually sentencing Brady under both section 775.082(9)(a), Florida Statutes (2001), the Prison Release Reoffender Punishment Act ("PRRPA") and section 775.087(2)(a), the "10-20-Life" statute, where the PRRPA sentence was for Life, but the 10-20-Life sentence was only for 25 to Life....

...State, 813 So.2d 1002, 1003 (Fla. 4th DCA 2002)(only where separate sentence under "10-20-Life" statute is greater than PRRPA sentence may it be imposed); Grant v. State, 770 So.2d 655, 659 (Fla.2000). Accordingly, we reverse and remand to vacate Brady's sentence under section 775.087(2)(a)....

...Eric John Gallentine raises two points on appeal from multiple convictions. We affirm without discussion his claim that the trial court erred in denying his motion to suppress. But we agree that the trial court erred by imposing a three-year mandatory minimum sentence under section 775.087(2)(a)(1)(r), Florida Statutes (2008), for possession of a firearm by a convicted felon....

...Travis Malcolm appeals the denial of his rule 3.800(a) motion to correct an illegal sentence. Malcolm was convicted of armed robbery and aggravated assault. For armed robbery, he was sentenced to life in prison as a Prison Releasee Reoffender with a ten year mandatory minimum for use of a firearm under section 775.087(2)(a), Florida Statutes ("10-20-life")....

precedent, that the sentences imposed pursuant to section 775.087(2), Florida Statutes, had to be consecutive

DCA 2013) (addressing an enhancement under section 775.087(2)(a)(3), Florida Statutes (1999), which requires

...ingly or intentionally cause great bodily harm, and/or permanent disfigurement, and/or permanent disability ... and during the commission of the offense, said defendant possessed a firearm or destructive device, in violation of s. 782.045(1)(A)1 and s. 775.087 Florida Statutes." At trial, the evidence showed that Hernandez beat the victim with a gun, causing injuries which included a head wound, broken *612 fingers, and a severed finger....

...The jury verdict form also did not clearly separate the type of aggravated battery. After deliberations, the jury checked the box for guilty of aggravated battery and the sub-box stating "With a Firearm." Based on this verdict, the trial court reclassified the aggravated battery charge to a first-degree felony pursuant to section 775.087(1), Florida Statutes (2003)....

...First, we must determine whether the aggravated battery was improperly reclassified. Aggravated battery is a second-degree felony that can be accomplished by either: (a) inflicting great bodily harm, or (b) using a deadly weapon. § 784.045(1)(a), Fla. Stat. (2003). Section 775.087(1)(b) authorizes a court to reclassify a second-degree felony to a first-degree felony when a firearm is used to commit the crime, except where use of a firearm is already an essential element of the crime....

...reduced to felon in possession of a firearm. Third, Jones also correctly argues that the trial court erroneously imposed a three-year mandatory minimum sentence for the use of a firearm without a jury finding that he actually possessed the firearm. Section 775.087(2)(a)(1), Florida Statutes (2003), enhances the sentence of a defendant who "actually possessed" a firearm during the commission of the crime....

...We affirm appellant's conviction for armed sexual battery, but vacate his sentence because of an error in the sentencing guidelines scoresheet. Because the trial court imposed a sentence which included a three-year mandatory minimum as required by section 775.087(2), Florida Statutes (1993), it was error for the guidelines scoresheet to include an additional eighteen points for possession of a firearm....

...nvicted felon. The trial court found him guilty of both crimes and, further, that he actually possessed the firearm. Based on this finding, the trial court imposed a minimum mandatory sentence of three years pursuant *1243 to the 10/20/Life statute, section 775.087(2)(a)1, Florida Statutes (2002)....

...he trial court had not enhanced Diaz's trafficking offense to a life felony. The sentencing guidelines scoresheet, however, shows that the trial court reclassified the trafficking offense from a first-degree felony to a life felony, apparently under section 775.087(1)(a), Florida Statutes (1985)....

...the double jeopardy analysis set forth in Carawan v. State, 515 So.2d 161 (Fla. 1987) is applicable. Next, we undertake a step-by-step analysis in application of Carawan. First, we find no clear and specific statements of legislative intent whether section 775.087(1)(a), the provision for reclassification of a felony for possession or use of a firearm during the commission of a felony, and section 790.07(2), the criminal offense for displaying, using, threatening or attempting to use a firearm...

...proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial." The elements of the reclassification statute for possession or use of a firearm during the commission of a felony are set forth in section 775.087: [D]uring the commission of such felony the defendant carries, displays, threatens, or attempts to use any ... firearm... . § 775.087(1), Fla....

...Where there is a reasonable basis for concluding that the legislature did not intend multiple punishments, the rule of lenity contained in section 775.021(1), Florida Statutes (1985) [7] and our common law requires that the *303 court find that multiple punishments are impermissible. Both statutes, sections 775.087(1)(a) and 790.07(2), address the same evil, i.e., possessing a firearm during the commission of a felony....

...es that we resolve the issue in favor of the accused. Based upon the foregoing analysis, we find that Diaz can only be convicted and sentenced on the trafficking offense, because the possession of the firearm has been factored into the offense under section 775.087(1)(a), to increase his crime from a first-degree felony to a life felony....

...[2] Section 790.07(2) states: (2) Whoever, while committing or attempting to commit any felony or while under indictment, displays, uses, threatens, or attempts to use any firearm or carries a concealed firearm is guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, and s. 775.084. [3] Section 775.087(1)(a) provides: (1) Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such felony the defendant...

...Pursuant to section 777.04(4)(b), an attempted capital felony is a first degree felony but not a felony punishable by life. In this case, however, since the jury found that the appellant used a firearm, the crime is reclassified as a life felony pursuant to section 775.087(1)(a)....

...The defendant and co-defendants were tried separately, and the jury convicted the defendant of second degree murder with a firearm as a lesser included offense of first degree murder. The second degree murder conviction was reclassified from a first degree felony to a life felony pursuant to section 775.087(1), Florida Statutes (1981), based on the jury’s specific finding that the defendant was armed with a firearm during the acts giving rise to his liability for second degree murder. The defendant does not dispute the suffici...

...CONNOLLY, JR., did unlawfully and feloniously kill a human being, to wit: JOHN B. CALLAHAN, from a premeditated design to effect the death of the person killed or any human being, by shooting the said JOHN B. CALLAHAN with a firearm, in violation of s. 782.04(1), s. 775.087 and s....

...The defendant cannot demonstrate fundamental error because possession of a firearm is not a necessary element of second degree murder; the indictment charges that the second degree murder was committed with a firearm; the indictment references section 775.087, the firearm reclassification/enhancement statute, in both the heading and in the body of the indictment; the State specifically informed the defendant that it intended to prove that he personally carried a firearm during the commission of the murder; the defendant has never claimed surprise or that he was prejudiced in the preparation or presentation of his defense by the reclassification of the homicide offense under section 775.087; and the reclassified second degree murder was not greater in degree or penalty than the charged first degree premeditated murder. 11  A....

...he defendant can demonstrate fundamental error. B. The alleged defect in the charging document does not constitute fundamental error. Because the defendant did not object to the reclassification of second degree murder under section 775.087(1) based on a deficiency in the indictment, he must demonstrate that fundamental error occurred....

...would constitute fundamental error.”). A review of the indictment, the case law, and the record demonstrates that Count I was not fundamentally defective because: (1) the indictment did not omit an essential element of the charged offense; (2) the indictment referenced section 775.087 in the heading and the body of the charges; (3) the defendant had notice that 15 the State would be seeking a reclassification of his conviction under section 775.087 based on the defendant’s personal possession of a firearm during the commission of the homicide; (4) at no time during the years of postconviction litigation has the defendant claimed surprise or prejudice in the preparation or p...

...Use or possession of a firearm, however, is not an essential element of second degree murder, 3 but rather, it may serve to allow for a reclassification of the second degree murder from a first degree felony to a life felony or as an enhancement of the sentence imposed. See § 775.087. Because the defect was not the omission of an essential element of the crime, 3 The elements of second degree murder are: (1) the victim is dead; (2) the death was caused by the criminal act of the defendant; and (3) there was...

...to reclassification based on a defect in the indictment, and the defect was not the omission of an essential element, he has waived the defect unless he can demonstrate that he had no notice that a conviction for second degree murder could subject him to a reclassification under section 775.087(1) if the jury found he carried a firearm during the commission of the felony....

...conviction as to Count I could subject him to a reclassification of the offense based on his personal possession of a firearm during the commission of the offense. (2) There was no fundamental error because the indictment referenced section 775.087 in the heading and the body of the charge. In Mesa v....

...Applying this standard, this Court held that where the information charging Mesa with attempted second degree murder failed to allege that Mesa possessed a 18 firearm during the commission of the felony, the information was not fundamentally defective because it referenced section 775.087 as one of the statutes the defendant had allegedly violated; the jury found the defendant guilty of possessing a firearm during the commission of the offense; and there was competent evidence to support the jury’s finding....

...even where the charging document omits an essential element of the crime, the charging document may still withstand challenge if it references the specific section of the code that details the elements of the offense). In the instant case, section 775.087 was referenced in both the heading and the body of Count I of the indictment; the jury found the defendant guilty of carrying a firearm during the commission of the homicide; and there was competent evidence to support the jury’s finding....

...In its response to the defendant’s motion to dismiss the conspiracy count, the State readily acknowledged that the jury must find that the defendant actually carried a firearm during the charged offense in order for the defendant to be subject to reclassification under section 775.087(1) and that, although one of the co-defendants 20 actually shot the victim, the defendant could also be eligible for reclassification based on his own personal possession of a firearm during his actions giving rise to liability for the offense. The State explained that section 775.087(1) provides for the reclassification of a first degree felony to a life felony if the defendant “carried” “any” (emphasis in the original) weapon during the commission of the felony. The State not only bolded and underlined “carried” and “any,” the State also specifically told the defendant in its response that it intended to prove at trial that the defendant carried a firearm within the meaning of section 775.087(1) during the relevant time periods alleged in the indictment. Additionally, the trial court’s order denying the defendant’s motion to dismiss Count II put the defendant on notice that a conviction in Count I could also result in a reclassification of that offense. The trial court’s order specifically found that a first degree felony could be reclassified to a life felony under section 775.087(1), and there is no statute of limitations for a life felony....

...The trial court’s order also put the defendant on notice that the State intended to seek a reclassification of the conspiracy to commit first degree murder charge because (1) conspiracy was designated as a life felony in the caption of the indictment; (2) section 775.087 was referenced in the heading of the indictment and in the body of each count of the indictment; and (3) the State alleged in the body of the conspiracy count that the conspiracy was committed with a firearm....

...Although the defendant’s motion and the State’s response 21 were directed to the conspiracy charge, these pleadings and the trial court’s order put the defendant on notice that Count I could also be reclassified because the indictment also referenced section 775.087 in the heading and in the body of the murder charge in Count I, and it also alleged that the homicide was committed with a firearm. Additionally, because first degree murder cannot be further enhanced or reclassified, the only purpose in referencing section 775.087 in the heading and in the body of Count I was to put the defendant on notice that a conviction for a lesser included offense in that count could subject him to an enhancement and/or a reclassification of the lesser offense....

...ute of limitations because it is a life felony. § 775.15(1), Fla. Stat. (1981). It is well-established Florida law that a lesser included offense of the crime alleged in the charging document can be reclassified under section 775.087(1). See Miller v. State, 460 So. 2d 373, 374 (Fla. 1984). The defendant was therefore put on notice that section 775.087(1) could be used to reclassify second degree murder to a life felony if the State proved and the jury found that the defendant carried, displayed, used, threatened, or attempted to use a firearm during 22 the commission of the homicide....

...(emphasis added). Relying on Ray, this Court concluded in Mitchell v. State, 689 So. 2d 1118, 1120 (Fla. 3d DCA 1997), that no fundamental error had occurred in the reclassification of Mitchell’s manslaughter conviction from a second degree felony to a first degree felony under section 775.087(1), the weapon reclassification statute, where Mitchell did not object to the jury instructions or verdict form, the jury found the offense was committed with a firearm, and Mitchell was not convicted of an offense greater in degree or penalty than the charged offense....

...ument where the defendant failed to raise the issue at trial). In the instant case, although the defendant had ample time to object to the indictment and to the reclassification of the lesser included offense of second degree murder under section 775.087(1) before trial and at the charge conference before the 24 jury was instructed, he failed to do so....

...d offenses because they were barred by the statute of limitations, he conceded that second degree murder with a firearm was not similarly barred, and he never argued that the State could not seek reclassification of the second degree murder under section 775.087(1) because the firearm reclassification was not properly charged in the indictment....

...firearm was the only lesser included 4 While the defendant objected at the charge conference to the trial court instructing the jury on conspiracy with a firearm (Count II), he specifically limited his objection regarding reclassification under section 775.087(1) to the conspiracy count: Defense Counsel: I object to the instruction with a firearm because it is not charged in the indictment....

...and the possession of a firearm, all of which the State was required to prove beyond a reasonable doubt. The defendant did not demonstrate fundamental error because he did not object to the reclassification of the second degree murder under section 775.087(1); he took affirmative action by requesting that the reclassification be made an element of second degree murder; there was abundant evidence that the defendant carried a firearm during the commission of the murder; and second deg...

...firearm is an offense lesser in degree and penalty than first degree premeditated murder. II. The jury’s verdict The defendant’s second contention is that the jury’s verdict was insufficient to subject him to reclassification under section 775.087(1)....

...The reclassification of second degree murder was based on the defendant’s personal possession of a firearm, not on a co-defendant’s use of a firearm during the commission of the homicide We agree with the defendant that his conviction for second degree murder could not be reclassified under section 775.087(1) based on a co-defendant’s possession or use of a weapon or firearm during the commission of the murder. The dissent’s assertion that we conclude otherwise is therefore misplaced. Florida law is well-settled that section 775.087(1) does not permit vicarious enhancement. See State v. Rodriguez, 602 So. 2d 1270, 1271 (Fla. 1992) (holding that “section 775.087(1) does not, by its terms, allow for vicarious enhancement because of the action of a codefendant”); Chase v....

...the defendant possessed or used a weapon during the commission of the offense); Campbell v. State, 935 So. 2d 614, 618 (Fla. 3d DCA 2006) (finding that it was error to reclassify Campbell’s conviction for conspiracy to traffic in cocaine under section 775.087(1) where there was no evidence that Campbell had actual physical or personal possession of a weapon at any time during the conspiracy); Parker v. State, 906 So. 2d 1273, 1273 (Fla. 5th DCA 2005) (noting that enhancement under section 775.087(1) is impermissible unless the defendant actually possesses a weapon during the commission of a crime); Betancourt v....

...cite to section 777.011, Fla. Stat. (2005), as that is the principal instruction that was agreed to by the parties and instructed by the trial court. 32 possession of a firearm. IV. Reclassification under section 775.087(1) does not require possession of the murder weapon Section 775.087(1) does not require, as the dissent claims, the defendant’s use or possession of the actual murder weapon. Rather, section 775.087(1) allows for reclassification of an offense if the defendant carries any weapon or firearm at any time during the commission of the felony. The dissent’s position to the contrary is based on its misreading of Rodriguez. I...

...e—and reiterated that a defendant’s sentence may not be enhanced based on a co-defendant’s possession of a weapon: “We have jurisdiction and answer the question in the negative, finding in accordance with the district court decision, that section 775.087(1) does not, by its terms, allow for vicarious enhancement because of the action of a codefendant.” 602 So....

...(emphasis added). Thus, contrary to the dissent, a defendant’s sentence may be enhanced or reclassified if the defendant carried any firearm during the commission of the homicide. The law does not require that the defendant be the actual shooter. Indeed, such a holding would entirely negate all the language in section 775.087 except for “use” of a weapon....

...arm when participating in the criminal offense). In this case, during the commission of the homicide the defendant committed acts as a principal in the first degree, and while committing these acts, he indisputably carried a firearm. Thus, section 775.087(1) was correctly applied to reclassify the offense. Section 775.087(1) provides in relevant part as follows: (1) Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and dur...

...Here, the jury found that the defendant carried a firearm during the acts he committed during the commission of, and which subjected him to his conviction for, the second degree 35 murder. If a defendant “carries” “any” weapon during the commission of the felony, section 775.087(1) is applicable. V. Florida law does not treat actual perpetrators and aiders and abettors differently, and application of section 775.087(1) does not rely on the role each plays during the commission of the offense Under Florida law, those who actually commit the offense and those who aid, abet, or procure the commission of an offense are treated the same reg...

...57-310, at 608, Laws of Fla. And, as the Florida Supreme Court recognized in Dene, “The legislative intent could not have been clearer.” 533 So. 2d at 266. The dissent, however, takes the position that reclassification of the murder in this case under section 775.087(1) is only permissible for what it calls the “actual perpetrator,” i.e., the person who shot the victim in the head....

...Thus, based on the dissent’s position, even if another individual (“Perp. #2”) held the victim at gunpoint while his accomplice (“Perp. #1”) shot and killed the victim, only Perp. #1 would be subject to reclassification. The dissent’s position is contrary to section 777.011 (the law of principals) and section 775.087(1) (the law regarding reclassification of offenses)....

...offense as “perpetrators” and others as “principals.” They are all “principals” if they actually committed, aided, abetted, 38 counseled, hired, or procured such offense to be committed. And section 775.087(1) provides, in pertinent part that “Whenever a person is charged with a felony ....

...ife” and the act caused the victim’s death, § 782.04(2), the defendant is guilty as a principal for the second degree murder of Callahan. And because the defendant was armed with a firearm when he committed these acts, reclassification under section 775.087(1) was lawful. Thus, contrary to the dissent’s position, for nearly sixty years, Florida has 39 treated the “actual perpetrator” and aiders and abettors the same regardless of their roles in the offense (they are all principals in the first degree), and section 775.087(1) provides for reclassification of the offense if during the commission of the offense the defendant carries, displays, etc. a firearm. Section 775.087(1) does not limit its application to “the actual perpetrator,” nor would it make sense to do so since actual perpetrators and aiders and abettors are all “principal[s] in the first degree.” § 777.011....

...Lastly, the defendant suggests, and the dissenting opinion and the concurring in part and dissenting in part opinion (which for purposes of addressing this argument will be referred to collectively as “the dissenters”) conclude that reclassification under section 775.087(1) may only occur if the firearm the defendant was carrying was both temporally and spatially related to the homicide....

...Thus, the defendant was properly convicted of second degree murder with a firearm, and reclassification of his murder conviction was not error, much less fundamental error. A. “During the commission of” does not require spatial proximity The relevant language in section 775.087(1) provides that “whenever a person is charged with a felony ....

...was imminently 43 dangerous to another demonstrating a depraved mind without regard for human life), the defendant carried a firearm and the defendant’s conviction was lawfully reclassified pursuant to section 775.087(1). The dissenters seek to engraft a requirement into the text of section 775.087(1) that is not present—that the carrying of the firearm must be “both temporally and spatially related to the crime committed.” However, the wording of the statute itself and a comparison to similar legislation demonstrates that the Florida Legislature did not include such a requirement and it intended that the reach of section 775.087 be as broad as possible, but tempered by prosecutorial discretion. The relevant language in section 775.087(1) provides that “whenever a person is charged with a felony ....

...and during the commission of such felony the defendant carries, displays, uses, threatens to use or attempts to use any weapon or firearm . . . the felony for which the person is charged shall be reclassified.” (emphasis added). Compare the emphasized language in 775.087(1) to a similar federal provision, 18 U.S.C....

..., in addition to the punishment provided for such crime of violence or drug trafficking crime [be sentenced to a minimum mandatory sentence to run consecutive to the underlying sentence.]” (emphasis added). When comparing section 775.087 (under any of its subsections) to the Federal 44 Code, it becomes glaringly apparent that the reach of section 775.087 of the Florida Statutes is substantially broader than that of section 924(c)(1)(A) of the Federal Code because the word “during” (at some time in the course of) in the Florida statute contemplates only a temporal relationship t...

...2006) (“To be carried ‘in relation to’ an offense under this section, a gun must have ‘some purpose or effect with respect to the crime of violence.’” (internal quotation marks omitted) (quoting United States v. Polk, 118 F.3d 286, 293 (5th Cir. 1997))). Florida’s statute, section 775.087, however, does not include the “in relation to” or “in furtherance of” language contained in its federal counterpart....

...d in this case it was proven, and the jury found, that during the acts the defendant committed during the commission of the homicide, he carried a firearm. We must assume that the Florida Legislature chose its words carefully when drafting section 775.087, and it clearly chose to use very broad language to encompass a wide variety of factual permutations. Not only does section 775.087(1) require reclassification when the weapon is utilized “during the commission of [the] felony,” it also allows the offense to be reclassified if the defendant “carries, displays, uses, threatens to use, or attempts to use” any weapon during the commission of the felony. It is clear that the ambit of section 775.087 is to allow harsher sentencing for defendants who in any way associate with a weapon while engaging in felonies. Thus, any person who carries any weapon while engaged in a felony is subject to harsher sentencing under section 775.087. B. Section 775.087 does not require that a principal be present when the “last act” was committed Besides attempting to add this “spatial and temporal proximity” language to section 775.087(1), which does not appear in the statute under any of its provisions, the dissenters conclude that second degree murder is a “discrete offense,” and because the defendant was not present when the “last act” to the murder was committed (the shooting of the victim), his conviction for second degree murder 46 cannot be reclassified pursuant to section 775.087(1). This conclusion rests on the premises that: (1) application of section 775.087(1) differs between “actual perpetrators” and aiders and abettors; and (2) second degree murder is a “discrete offense” that is only committed upon the completion of the crime—in other words, when the victim was shot and h...

...Perpetrators, who were always statutorily referred to as “principals in the first degree,” and aiders and abettors are now all “principal[s] in the first degree,” and section 777.011 provides that each may be “charged, convicted, and punished” the same. Section 775.087(1) does not alter this general principal of law, and thus, all principals are treated alike. If a principal is armed during the commission of the felony, his offense may be reclassified under section 775.087(1) whether or not he is present....

...s was armed during his role in the homicide, only Defendant #3, who committed the last act—dumping the victim’s body at a deserted location where he could not seek help and where he ultimately died—would be subject to reclassification under section 775.087(1)....

...Although Defendant #2 shot the victim and both Defendants #1 and #3 were principals in the first degree to the murder, because neither Defendant #1 nor Defendant #2 was present during the last act that caused the victim’s death, under the dissenters’ interpretation of section 775.087(1), their offenses could not be reclassified even though each was armed with a firearm when they carried out their agreed-upon roles in the homicide....

...What the dissenters fail to recognize is that all three perpetrators 49 were principals in the first degree to the homicide; section 777.011 requires that they all be treated the same (“may be charged, convicted, and punished as such”); and section 775.087(1) permits reclassification of each of the principal’s convictions if he personally used, threatened to use, carried, etc....

...It is equally clear that neither section 777.011 nor section 782.04(2) requires the defendant to be present when the shooting occurs or during the “last act” that caused the victim’s demise. The defendant and the dissenters, however, would impose such a requirement for reclassification under section 775.087(1) despite the Legislature’s failure to add such 51 language to section 775.087(1). C. Second degree murder can be an on-going crime Despite the Florida Legislature’s failure to include a “last act” requirement for imposition of section 775.087(1), the defendant and the dissenters encourage this Court to judicially impose a “last act” requirement for the crime of second degree murder....

...t the shooter and was not present when the two guards were shot and killed and the third man was shot and injured. Id. This Court found that enhancement of the two second degree murders and the attempted second degree murder sentences pursuant to section 775.087 was proper, even though Junco was not present when the actual homicides and the attempted homicide were committed, because there was evidence that Junco was a principal to these offenses and he was in possession of a firearm while aiding and abetting the commission of the crimes....

...burglary and, at a minimum, second degree murder. Because both Bob and Sam were armed with firearms during the commission of the acts that make them guilty of second degree murder, their convictions for second degree murder may be reclassified under section 775.087(1)....

...Thus, because Bob and Sam in this hypothetical, and the defendant in our case, were armed with firearms during the acts they committed and which caused the death of the victims, their convictions for second degree murder shall be reclassified to life felonies under section 775.087(1). As these hypotheticals and this Court’s prior opinion in Junco demonstrate, the homicide in the instant case was an on-going offense, and the defendant was armed while he committed acts which were intended to and did in...

...Callahan was actually shot and killed. Possession of a weapon at any point in the interim was “during the commission of the felony.” In 1999, the Florida Legislature specifically addressed the application of subsections (2) and (3) of section 775.087, regarding the imposition of minimum mandatory prison terms for criminals who possess firearms during the commission of an offense. In section 27.366, Florida Statutes (1999), the Florida Legislature specified that whenever a criminal offender meets the criteria in sections 775.087(2) and (3), and a minimum mandatory sentence is not imposed, the State Attorney must explain why the minimum mandatory sentence was not imposed in writing and maintain that explanation in the case file....

...preparation to commit the crime.” Id. Section 27.366 reads in full as follows: 58  It is the intent of the Legislature that convicted criminal offenders who meet the criteria in s. 775.087(2) and (3) be sentenced to the minimum mandatory prison terms provided herein....

...mandatory minimum prison sentence, the state attorney must explain the sentencing deviation in writing and place such explanation in the case file maintained by the state attorney. Although section 27.366 is directed to subsections (2) and (3) of section 775.087, because section 775.087(1) does not include the “related to” or the “in furtherance of” language, and the Florida Legislature has expressed its zero tolerance for those who possess firearms during the commission of a crime, we reject the notion that section 775.087(1) should only apply to principals who are present when the last act or last element of a crime is committed, or when the firearm is used in furtherance of the crime. To do so violates the clear and unambiguous language of sections 777.011 (the principal statute), 775.087(1) (the reclassification statute), and 782.04(2) (the second degree murder statute)....

...the offense, lies within the State’s discretion. And that discretion is further tempered 59 by the jury’s pardon powers. If the Legislature granted prosecutors the discretion whether to seek enhanced sentences under section 775.087 “in those cases in which the offender’s possession of a firearm is incidental to the commission of a crime and not used in furtherance of a crime, used in order to commit a crime, or used in preparation to commit a crime,” th...

...second degree murder, the dissenters separate the elements and ultimately conclude 60 that the defendant must have been armed with a firearm when one or all of the elements was satisfied in order for reclassification to occur under section 775.087(1). As stated earlier, second degree murder is the unlawful killing of a human being by any act that is imminently dangerous to another and evincing a depraved mind regardless of human life....

...2d DCA 1984), and Robinson v. State, 263 So. 2d 595 (Fla. 3d DCA 1972), sheds no light on the issue in this appeal. The issue in this appeal is whether the defendant’s conviction for the completed crime of second degree murder was lawfully reclassified under section 775.087(1) where the jury found that the defendant committed an act or acts that were imminently dangerous to another and which caused the death of Callahan, the jury found the defendant carried a firearm during...

...Procurement, planning, and an overt act or acts that do not cause the death of the victim, do not satisfy the requisite elements of second degree murder. That does not mean, however, that the defendant must possess a firearm during the commission of all of the elements of second degree murder. Section 775.087(1) imposes no such requirement. Section 775.087(1) provides that “whenever a person is charged with a felony ....

....” And as the Merriam-Webster Dictionary clearly concludes—“during” means “at some time in the course of.” Because the jury found, and the evidence established, that the defendant carried a firearm during his role in the commission of Callahan’s murder, his conviction was properly reclassified under section 775.087(1). Second degree murder is also a rather unique crime....

...These findings would have allowed the defendant to be convicted of second degree murder wholly apart from accomplice liability or the principal statute, i.e., the defendant is the “actual perpetrator” as well. Thus, his conviction was properly reclassified pursuant to section 775.087(1). The concurring in part and dissenting in part opinion erroneously relies on Lemus v. State, 33 So. 3d 774 (Fla. 4th DCA 2010). In Lemus, the Fourth District Court of Appeal addressed whether under section 775.087(2)(a)2....

...discharge of a firearm during his standoff with the police. The Fourth District Court of Appeal correctly held that based on the facts of that case, the twenty-year minimum mandatory sentences could not be imposed for the aggravated assaults. Id. at 776. Section 775.087(2)(a)2....

...f with the police, because he did not discharge his firearm during the commission of either of the aggravated assaults (when he came outside the house and pointed his firearm at the police), the Fourth District Court of Appeal correctly held that section 775.087(2)(a)2....

...regardless of human life, and that these acts caused Callahan’s death. Thus, it cannot be disputed that the jury found that the defendant carried a firearm during the commission of the second degree murder. Lastly, reclassification under section 775.087(1) does not require use of the 66 weapon that actually killed the victim, the defendant’s physical presence during the last act that resulted in the victim’s death, or that the firearm carried by the defendant be used in furtherance of the crime....

...Connolly v. State Case No. 09-280 SUAREZ, C.J. (dissenting). I respectfully dissent. The majority decision has established an entirely new standard for the application of section 775.087(1), Florida Statutes, 6 governing the reclassification of certain crimes, not only in direct conflict with Florida Supreme Court precedent interpreting that statute, but also precedent out of every Florida district court of appeal including our own....

...statute] is susceptible of differing constructions, it shall be construed most favorably to the accused.” § 775.021(1), Fla. Stat. (1981) (providing the rules of construction for the provisions of that statute, which includes reclassification, section 775.087(1)). 7 6 Section 775.087(1), Florida Statutes (1981) (emphasis supplied) provides, Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential e...

...State, 991 So. 2d 803, 814–15 (Fla. 2008) (observing in regard to ambiguous criminal statute that we “cannot simply choose our preferred 68  The statutory construction at issue in the language of section 775.087(1) is whether the words “carries, displays, uses ....

...e charged offense; or, as the majority now holds, that language refers to any weapon – charged or not – in the possession of a co-defendant, no matter how remote in time and geographical location from the actual charged crime. Up until today, section 775.087(1) has been interpreted throughout the state to require the defendant to have carried, displayed, used, threatened or attempted to use the weapon actually used or available for use in commission of the felony....

...llahan. Even appellate counsel for the State conceded at oral argument there is no case law in the entire jurisprudence of this state, or in the entire country so far as we can discern, to support today’s interpretation and application of section 775.087(1) to reclassify based on 1) a co-defendant’s carrying, using, displaying, etc., a weapon not charged or mentioned in the indictment or information; 2) where that weapon construction” and “In Florida, the rule [of lenity] is not just an interpretive tool, but a statutory directive”); Lambert v....

...is not the issue before us on appeal. Connolly’s participation in egregious acts and culpability as a principal should not enter into our analysis of the very specific and circumscribed legal issue raised by the parties in this appeal: whether section 775.087(1) allows reclassification of Connolly’s conviction of the lesser included offense of second-degree murder as a principal where Connolly was not present during the commission of the offense, and never carried the firearm used and...

...degree murder, and Connolly would have to be released. There was only one way for the State to repurpose the conviction, and that was to argue that Connolly’s conviction for second-degree murder should be reclassified to a life felony pursuant to section 775.087(1), as there is no statute of limitation on a life felony. Connolly would then be exposed at sentencing to a term of years up to life in prison. The problem the State faced is that years of case law had interpreted section 775.087 to require the defendant to have been in actual possession of (carried, displayed, etc.) the weapon during commission of the crime, in order for a conviction to be reclassified. The State then pursued a novel theory to justify reclassification: the State argued that a literal reading of section 775.087(1) required only that the defendant possess “any” weapon or firearm....

...See § 775.15(2) (a), Fla. Stat. (1982) (“A prosecution for a felony of the first degree must be commenced within 4 years after it is committed.”) 71 defendant’s conviction could be reclassified pursuant to section 775.087(1). Connolly, though in Boston at the time of the murder, was obligated to wear his FBI- issued service weapon and thus, argued the State, he “carried” a firearm “during the commission of the felony,” referring to the language of section 775.087(1)....

...eriod is encompassed by the language “during the commission of the offense,” and, as among multiple defendants, to what weapon does the statutory phrase “any weapon or firearm” refer? The controversy over how this specific language within section 775.087(1) should be applied to the facts before us is the crux of this appeal....

...a weapon three weeks prior to the murder does not change the fact that [he] had to have possessed the actual murder weapon at the time of the murder for the reclassification of second degree murder with a firearm under §§ 775.087 and 777.011, Fla....

...did unlawfully and feloniously kill a human being, to wit: JOHN B. CALLAHAN, from a premeditated design to effect the death of the person killed or any human being, by shooting the said JOHN B. CALLAHAN with a firearm, in violation of s. 782.04(1), s. 775.087, and s....

...“did unlawfully and feloniously agree, conspire, combine, or confederate [with one another] to commit a criminal offense, to wit: Murder in the first degree with a firearm upon JOHN B. CALLAHAN, in violation of s. 782.04(1), s. 777.04(3), s. 775.087, and s....

...The State requested the jury be instructed on second-degree murder with a firearm as a lesser included offense of first-degree murder. The State argued if Connolly were so convicted, it would seek reclassification of that first-degree felony to a life felony pursuant to section 775.087(1), and that a life felony was not barred by the four-year statute of limitation. The trial court granted the State’s request over defense counsel’s objection, adding “carrying a firearm,” as a fourth element to the second-degree murder instructions....

...The verdict form simply stated, “Guilty of second-degree murder, with a firearm, as a lesser included offense of first-degree murder.” Based on the jury’s verdict that found Connolly guilty of second-degree murder “with a firearm,” the trial court reclassified the conviction to a life felony pursuant to section 775.087(1) and sentenced Connolly to forty years in prison. ANALYSIS 1) Count 1 of the indictment failed to provide Connolly with notice that a conviction for a lesser included offense as a principal could be reclassified based on his own weapon, where Connolly was not present during the commission of the offense, and his weapon was unrelated to the commission of the offense. It is pure sophistry to argue that the general reference to section 775.087 in Count 1 of the indictment put Connolly on notice that his service weapon—an 77 uncharged 15 firearm completely unrelated to the murder, located in an entirely different state at the...

...1984), to support its argument that reclassification was proper. It is true that the primary charge in an indictment or information includes all lesser included offenses, for purposes of reclassification, but I cannot agree that Miller supports reclassification pursuant to section 775.087(1) based on a weapon uncharged and unrelated to the commission of the offense....

...State v. Gray, 435 So. 2d 816, 818 (Fla. 1983). This is a deficiency that can 78 State, 932 So. 2d 518, 520 (Fla. 4th DCA 2006) (holding that State’s failure to specifically reference the subsection within section 775.087 in the information renders notice of the particular enhancement sought against the defendant insufficient). Count 1 of the indictment alleged the four co-perpetrators killed Callahan “by shooting the said JOHN B....

...State, 995 So. 2d 401, 404 (Fla. 2008) (reiterating that the failure to allege an essential element of a crime may be raised in a habeas petition). 18 See fn.7, supra. 79 that the State was planning to apply section 775.087(1), upon possible conviction for a lesser included offense, to an unmentioned firearm that had nothing to do with the murder. The State argues that Connolly’s failure to challenge the sufficiency of the indictment by motio...

...punishable by death, and is not subject to reclassification or enhancement as there is no higher punishment level. Further, the charging document failed to place Connolly on notice that conviction on a lesser included offense would subject him to reclassification pursuant to section 775.087(1) because the language of Count 1 did not expressly single him out, as one of the four equally charged co-defendants, with actually possessing, carrying, using or discharging a second firearm, i.e., his FBI- issued sidearm....

...Martorano’s firearm, the murder weapon, was the only weapon charged in Count 1. As this was a multi-defendant case and only one of the defendants, Martorano, used the gun to shoot the victim, Connolly would have no reason to conclude that the general reference in Count 1 to section 775.087 pertained 80 to him rather than the actual shooter.19 Connolly’s only avenue of relief was to object to the inclusion of any lesser included offenses, which the record clearly shows h...

...But Mesa is pointedly distinguishable in several ways. First, and most important, Mesa involved only one defendant and one gun, the gun used in the crime. There was no opportunity for confusion regarding who committed the crime and used the weapon. Thus, the general reference to section 775.087 in Mesa’s charging document was enough to put him on notice that the prosecution was seeking reclassification under subsection (1) and/or enhancement for possession of a firearm under subsection (2) because he was the only defendant, and there was only one weapon involved....

...In addition, the jury specifically found that Mesa actually used a firearm via a special verdict form, to which he did not object. Thus, there was a clear jury finding that 19 At the time of the indictment and trial, case precedent interpreted the language of section 775.087 to apply only to the defendant who actually possessed, carried, displayed, etc....

...waived the issue. Where the State failed to allege in Count 1 that Connolly carried, displayed, used, threatened to use or attempted to use a second, unrelated firearm during the commission of the homicide, I conclude reclassification pursuant to section 775.087(1), given the facts in this case, was improper. The case controlling application of section 775.087(1) is the Florida Supreme Court case of State v. Rodriguez, 602 So. 2d 1270 (Fla. 1992). Between the holding of Rodriguez and the language of section 775.087(1) lies “language susceptible of differing construction.” § 775.021(1). 84  2) It was error to reclassify based on a conviction as a principal for vicariously possess...

...Statutes (1981).22 But a defendant’s conviction may not be reclassified for a co- defendant’s possession of a firearm during a felony. Rodriguez, 602 So. 2d at 1270. In Rodriguez, 23 the Florida Supreme Court construed the language of section 775.087(1) and answered this certified question in the negative: “Does the 22 Section 777.011 reads: Whoever commits any criminal offense against the state, whether felony or misdemeanor, or aids, abets...

...In that case, the police attempted to pull Rodriguez’s car over and a high speed chase ensued. During the chase, a passenger in Rodriguez’s car picked up a rifle from the car seat and shot at the police. At trial, Rodriguez’s conviction was reclassified pursuant to section 775.087(1)....

...Upon post-trial motions, the trial court agreed the reclassification was illegal as Rodriguez never possessed the rifle that that was fired by the co-perpetrator during the chase. On appeal, this court agreed. “This court has previously ruled that “the enhancement provisions of section 775.087(1), Florida Statutes (1977), ....

...requires that the defendant personally possess the weapon during the commission of the crime involved.” Id. at 1190 (citing to Postell v. State, 383 So. 2d 1159, 1162 (Fla. 3d DCA 1980)) (emphasis supplied). 85 enhancement provision of subsection 775.087(1), Florida Statutes (1983), extend to persons who do not actually possess the weapon but who commit an overt act in furtherance of its use by a coperpetrator?” Id. at 1271. The Court focused on the language of subsection 775.087(1), which requires that the defendant carry, display, use, threaten, or attempt to use any weapon or firearm. Id. [emphasis in original]. The Court held that when a defendant is charged with a felony involving the “use” of a weapon, his or her sentence cannot be enhanced [reclassified] under section 775.087(1) without evidence establishing that the defendant had personal possession of the weapon during the commission of the felony. Id. at 1272. The Court explicitly rejected the idea that a defendant could be subject to reclassification under subsection 775.087(1) as a principal, i.e., where the defendant did not personally possess the weapon used during the commission of the offense....

...und reclassification. This is contrary to the holding of Rodriguez and its related cases because the Rodriguez Court also noted in its opinion that the defendant’s sentence “could have been “enhanced” (more accurately, reclassified) under section 775.087(1) if the State had charged him with the commission of a felony while carrying the pistol that was found on his person after the chase....

...his service revolver during the commission of the murder, nor was that uncharged weapon at all related to the murder offense. See, e.g., Arnett v. State, 128 So. 3d 87 87 (Fla. 1st DCA 2013) (holding that 775.087 enhancement was improper where the grounds for enhancement were not clearly charged in the information, and a jury finding that the appellant actually possessed a firearm does not cure the charging defect)....

...The same conclusion as arrived by the Florida Supreme Court in Rodriguez applies here. Consequently, the trial court’s reclassification was fundamentally erroneous. The majority’s legal conclusion contradicts years of case authority interpreting section 775.087(1) as requiring that the defendant must personally possess the weapon used in the commission of the crime so charged....

...See e.g., Chase v. State, 74 So. 3d 1138 (Fla. 2d DCA 2011) (holding that defendant’s conviction for aggravated battery should not have been reclassified from a second-degree felony to a first-degree felony based on use of a weapon pursuant to section 775.087(1), where the evidence showed that only the co-defendant possessed or used a weapon during the offense); Alusma v. State, 939 So. 2d 1081 (Fla. 4th DCA 2006) (reversing reclassification under section 775.087(1) where the defendant was convicted as a principal with his co-defendant, and the verdict did not reflect that the defendant was in actual possession of the firearm during the offense); Parker v. State, 906 So. 2d 1273 (Fla. 5th DCA 2005) (noting that reclassification under section 775.087(1) is impermissible unless the defendant actually possesses a weapon during the commission of the crime); Porter v. State, 737 So. 2d 1119, 1119 (Fla. 2d 88 DCA 1999) (citing Rodriguez for the proposition “that section 775.087(1) does not permit vicarious enhancement”); Clark v. State, 701 So. 2d 912 (Fla. 4th DCA 1997) (same; citing to Rodriguez, and Williams v. State, 622 So. 2d 456 (Fla. 1993)); Williams v. State, 656 So. 2d 574, 575 (Fla. 1st DCA 1995) (holding murder sentence cannot be enhanced under section 775.087(1) where the jury specifically found “a firearm not in [defendant’s] physical possession was used” in the course of committing the murder); Robins v. State, 602 So. 2d 1272 (Fla. 1992) (quashing affirmance of reclassification under section 775.087(1) based on co-defendant’s wielding of gun during commission of kidnapping offense); Willingham v....

...punished as such, whether he or she is or is not actually or constructively present at the commission of such offense. But the Florida Supreme Court explicitly rejected the idea that a defendant could be subject to reclassification under subsection 775.087(1) as a principal....

...That is to say, the State charged Connolly as a principal in Count 1 with the first-degree murder of Callahan by shooting him with a firearm, not any underlying conspiracy that may have precipitated the murder, i.e., the “act” of meeting with co-perpetrators weeks earlier. a) The language in section 775.087(1), “during the commission of the offense,” refers to the homicide, not the acts of conspiracy contributing to the homicide. “Act” is defined in the standard jury instructions as including “a series of re...

...vagueness become a reason for broadening a penal statute.” Id. at 1312; see also Lemus v. State, 33 So. 3d 774, 776 (Fla. 4th DCA 2010) (rejecting, as contrary to both the plain meaning of the statute and the “rule of lenity,” the State's overbroad interpretation of 775.087 that, as the defendant fired a revolver while earlier engaged in a standoff, the weapon was fired during the “criminal episode” of the subsequent assault for purposes of applying a mandatory minimum sentence under that statute); Kasischke, 991 So....

...or her conviction reclassified based on that unrelated weapon. The policy implications of this holding are profound. 92 defendant is charged with a felony involving the ‘use’ of a weapon, his or her sentence cannot be enhanced under section 775.087(1) without evidence establishing that the defendant had personal possession of the weapon during the commission of the felony.”) [emphasis supplied]. 5) Connolly was acquitted of conspiracy, the only charge that would support reclassification for committing the offense “with a firearm.” Had Connolly been convicted as charged in Count 2 of conspiracy to commit first-degree murder with a firearm, reclassification under section 775.087(1) would have been proper....

...v. State, 521 So. 2d 210, 212 (Fla. 1st DCA 1988) (finding competent substantial evidence that defendant carried or used a firearm during the course of the ongoing offense of cocaine trafficking sufficient to support reclassification pursuant to section 775.087(1); noting that crimes covered by section 775.087 require actual possession because they are generally of short duration and the purpose served by the firearm requires physical possession of the weapon) (emphasis supplied). Such precedent is without application here, however...

...are separate and distinct offenses). As I have previously explained, Connolly’s conviction cannot be reclassified based on Martorano’s possession of the only weapon charged in Count 1. See Willingham, 541 So. 2d at 1240 (“A plain reading of section 775.087(1) would be to require proof that Willingham actually carried or used a firearm during the course of the offense....

...absolutely no spatial or temporal relationship to the discrete crime charged; it had no purpose related to the crime charged. See Williams v. State, 622 So. 2d 456 (Fla. 1993) (finding it error to enhance defendant’s sentence pursuant to sections 775.087(1)-(2), where facts showed the defendant was in Miami at the time the crimes in Pensacola were committed by his cohorts, thus the State consequently failed to show that the defendant had actual physical possession of a firearm during the commission of the crime); Lemus, 33 So. 3d at 776. The “carrying” element present in Connolly’s case was only applicable to a charge for which he has been acquitted. I can find no case law interpreting section 775.087(1) that would apply to the facts presented in this case, and find, however, much case law to go against the majority’s contortion of the application of section 775.087(1) to fit these facts. 6) The jury verdict fails to support reclassification. The State argues that the verdict did, in fact, find Connolly guilty of second- degree murder “with a firearm,” satisfying State v....

...See Roberts v. State, 923 So. 2d 578 (Fla. 5th DCA 2006 (“The jury expressly found that Roberts carried, used, threatened to use, or attempted to use a weapon in committing both crimes. This is exactly what is required for reclassification . . . under section 775.087(1)”); Streeter v....

...2d at 1206, If the State seeks to have a defendant's crime upwardly reclassified and his sentence thus enhanced because a weapon was used, it is incumbent upon it to see that the verdict forms pertaining to any count susceptible to reclassification under Section 775.087 contain the required additional finding that the defendant committed the crime in a manner prohibited by the reclassification statute. 97 (emphasis added)....

...erlying first-degree felony. Without the fundamentally erroneous reclassification, the first-degree felony of second- degree murder was time-barred. I strenuously dissent from the majority’s new and unprecedented expansion of the application of section 775.087(1) to apply to a weapon not charged in the indictment or information, and spatially and temporally unrelated to the actual offense charged. The majority has by its opinion so broadened the interpretation of section 98 775.087(1) in our district as to be in direct conflict with case authority from other Florida district courts of appeal and the Florida Supreme Court....

...criminal cases in Florida into the future. Finally, I would certify the following question to the Florida Supreme Court as a matter of great public importance, in order to resolve the apparent conflict between the majority’s interpretation of section 775.087(1) and the interpretation and application of that statute in the controlling authority of State v. Rodriguez, and related cases: Does section 775.087(1) allow reclassification of a conviction where “during the commission of such a felony the defendant carries, displays, uses, threatens, or attempts to use any weapon or firearm” and that firearm or weapon is un...

...Connolly was neither actually nor constructively present when others committed the murder. B. The Relevant Statutes To answer the dispositive question, we must construe the relevant language of the reclassification statute, section 775.087(1), Florida Statutes (1981), and its interplay with the principal statute, section 777.011, Florida Statutes (1981). The reclassification statute (section 775.087(1)) provides in pertinent part: 775.087....

...See §§ 812.13(2)(a), 812.131(2)(a), 812.133(2)(a), Fla. Stat. (2015). Each of these statutes define the phrase “in the course of committing” uniformly: 30 Other statutes utilize the phrase “during the commission of” the offense but similarly fail to include any definition. See, e.g., § 775.087(2)(a), Fla....

...Stat. (reclassifying false personation of a law enforcement officer to a second-degree felony if the person “falsely personates any such officer during the course of the commission of a felony”). 31 Additionally, and as discussed infra at C.6, section 775.087(2)(a)2....

...Displays any weapon or firearm; c. Uses any weapon or firearm; d. Threatens to use any weapon or firearm; or e. Attempts to use any weapon or firearm. 2. “During the commission of” the felony “commits an aggravated battery.” See § 775.087(1), Fla....

...The fact that Connolly was not actually or constructively present is concededly irrelevant to his conviction as a principal to second-degree murder. However, I conclude Connolly’s second-degree murder conviction as a principal cannot be reclassified under section 775.087(1) because he did not carry use, display, threaten to use, or attempt to use any weapon or firearm while actually or 113 constructively present during the commission of the offense....

...There are two flaws with this position: first, section 27.366 was enacted in 1999, eighteen years after John Callahan was murdered. Second, and as even the majority concedes, section 27.366, makes no reference whatsoever to the reclassification subsection (775.087(1)), limiting its expressed legislative intent to the minimum mandatory subsections of section 775.087 (§§ 775.087(2) and (3))....

... second-degree murder may be reclassified because “during the commission of” the second-degree murder, Principal “uses” a firearm. (Of note, under the majority’s analysis, Principal would also be subject to a 20-year mandatory minimum under section 775.087(2)(a)2....

...Had the State charged Connolly with criminal solicitation, and had the jury found him guilty of said crime, Connolly’s carrying of a firearm during the completed criminal offense of solicitation, would presumably have authorized reclassification under section 775.087(1), because Connolly himself committed the acts constituting the criminal offense of solicitation and committed those acts while carrying a firearm....

...firearm from the accomplice and began shooting at the departing officer. Willingham was convicted of sale of cocaine with a firearm, 43 and the trial court reclassified Willingham’s offense from a second-degree felony to a first-degree felony pursuant to section 775.087(1) on the basis that the defendant used a firearm “during the commission of” the offense of sale of cocaine....

...Junco was convicted of two counts of second- degree murder with a firearm, attempted second-degree murder, robbery with a firearm, and trafficking in marijuana. The two murder convictions, and the attempted murder conviction, were reclassified under section 775.087(1), and the trial court also imposed four consecutive three-year minimum-mandatory sentences for the robbery, attempted murder, and two murder convictions (for possession of a firearm under 775.087(2)). On appeal, and contrary to the majority’s assertion (see majority opinion at 52), the defendant in Junco did not argue, and this court in Junco did not address, the propriety of the reclassification of the two murder and one a...

...gun at Deputy Davis (but did not discharge the gun) and again retreated inside the apartment (the second aggravated assault). - Defendant later emerged from the apartment a final time and was arrested without further incident. Applying section 775.087(2)(a)2....

...(the “10/20/Life” statute),49 the trial court imposed a twenty-year minimum mandatory sentence for each of the aggravated assault convictions, finding that “during the course of the commission of” the aggravated assaults, defendant discharged a firearm. The Fourth District reversed 49 Section 775.087(2)(a)2....

...See §§ 784.011(1) (defining crime of assault), 784.021 (defining crime of aggravated assault), 784.07(2)(c) (defining crime of aggravated assault on a law enforcement officer). The State argues that the phrase “during the course of” contained in section 775.087(2)(a)2....

...principal (aiding and abetting the armed robbery by providing co-defendants with the firearm used in the crime). The trial court’s sentence of Crimson included a three-year mandatory minimum term because Crimson was convicted of the robbery and had in his possession a firearm. See § 775.087(2), Fla....

...nt. In fact, Crimson provides an even more compelling set of facts, given that the defendant supplied his 50 Neither party cited to this case during the initial briefing or during the supplemental briefing on rehearing en banc. 51 In 1979, section 775.087(2)(a), Florida Statutes, read in relevant part: Any person who is convicted of: ....

...y. The appellant argues that his sentence is illegal because the trial court unlawfully enhanced his conviction from a second-degree felony to a first-degree felony. The appellant further alleges that his conviction could not be enhanced pursuant to section 775.087, Florida Statutes (1977), because the use of a weapon is an essential element of attempted armed robbery....

...ond-degree felony punishable by a term of imprisonment not exceeding 15 years under the attempt statute. See §§ 775.082 & 777.04, Fla. Stat. (1977). Moreover, the offense of attempted armed robbery cannot be punished as a first-degree felony under section 775.087, Florida Statutes, because the use of a weapon is an essential element of the offense. See Tripp v. State, 610 So.2d 1311, 1312(Fla. 1st DCA 1992), aff'd, 642 So.2d 728 (Fla.1994); see also § 775.087(1), Fla....

...he record establishing that the appellant's sentence was enhanced under another provision of law, or to resentence the appellant to a legal sentence for a second-degree felony. REVERSED and REMANDED. BOOTH, DAVIS and PADOVANO, JJ., CONCUR. NOTES [1] Section 775.087, Florida Statutes, provides that a felony offense may be reclassified to a higher degree if during the commission of the offense the defendant carries or uses a weapon or firearm, unless the use of a weapon or firearm is an essential element of the charged offense....

...For possession of a firearm by a convicted felon, section 790.23, Florida Statutes (1999), the trial court sentenced Irons to three years in state prison as a habitual felony offender under section 775.084, Florida Statutes (1999). The trial court also imposed a three-year minimum mandatory sentence enhancement pursuant to section 775.087(2)(a)(1)(r)....

...See Bundrage v. State, 814 So.2d 1133, 1134 (Fla. 2d DCA 2002) (holding that although the underlying offense of possession of a firearm by a convicted felon may be proved by either actual or constructive possession, the minimum mandatory sentence of section 775.087(2)(a)(1)(r) may be imposed only upon a finding of actual possession)....

...With commendable candor, the State concedes error on this point. The State also suggests that under the circumstances of this particular case, Irons should be granted the relief he requests, which is remand with instructions for the trial court to strike the three-year minimum mandatory sentence under section 775.087(2)(a)(1)(r), leaving the remainder of the sentence undisturbed....

...Butterworth, Attorney General, and Thomas D. Winokur, Assistant Attorney General, Tallahassee, Attorneys for Appellee. PER CURIAM. In this direct appeal, Appellant challenges the imposition of a three-year minimum mandatory sentence for possession of a firearm pursuant to section 775.087(2), Florida Statutes, and certain costs, fees and restitution ordered....

...r with a firearm and one count of shooting into a vehicle. The trial court sentenced Mr. Hargrove to two consecutive twenty-year terms of imprisonment, minimum mandatory, for the two counts of attempted murder pursuant to the 10-20-life statute, see § 775.087(2)(a), Fla....

...1st DCA 1983). The State correctly concedes that none of Mr. Postell's crimes were life felonies as the trial court concluded. The *989 State also concedes that Mr. Postell's crimes were not subject to a mandatory enhancement to life felonies under section 775.087, Florida Statutes....

...Postell is necessarily entitled to resentencing as a youthful offender; rather, he is entitled to be sentenced at a proceeding at which the trial court is fully informed of its discretion. REVERSED and REMANDED. GRIFFIN and EVANDER, JJ., concur. NOTES [1] §§ 787.01(1)(a)(2), 775.087(1), (2), Fla. Stat. (2004). [2] §§ 787.01(1)(a)(3), 775.087(1), (2), Fla. Stat. (2004). [3] § 812.014(2)(c)(6), Fla. Stat. (2004). [4] Under the "mailbox" rule, Mr. Postell's motion was filed within thirty days of sentencing. [5] Section 775.087 mandates the reclassification of a first-degree felony to a life felony when, during the commission of the felony, "the defendant carries, displays, uses, threatens to use, or attempts to use any weapon or firearm, or during the commission of such felony the defendant commits an aggravated battery," so long as the use of a weapon or firearm is not an essential element of the felony. § 775.087(1)(a), Fla. Stat. (2004). However, "when a defendant is charged with a felony involving the `use' of a weapon, his or her sentence cannot be enhanced under section 775.087(1) without evidence establishing that the defendant had personal possession of the weapon during the commission of the felony." State v....

sentence of twenty-five years pursuant to section 775.087(2)(a)3., Florida Statutes (2007), where the

...3d DCA 2001). Specifically, we found that: the defendant's sentences for kidnaping under counts five, seven, nine, eleven, and thirteen were incorrectly classified as first degree felonies. Kidnaping with a weapon is classified as a life felony. See § 775.087(1)(a), Florida Statutes (2000)....

...during the commission of a felony. We agree and reverse. Criminal offenses are separate offenses only if each offense requires proof of an element that the other does not. § 775.021(4), Fla. Stat. Aggravated assault with a firearm, §§ 784.021 and 775.087(2)(a), Fla....

...§ 790.07(2), Fla. Stat. (1987). The double jeopardy prohibition precludes Ellison from being punished twice for the same offense. Therefore, he can be convicted and sentenced for either one of the offenses but not both. The state incorrectly contends that § 775.087 mandates that the third degree felony of aggravated assault with a firearm be reclassified as a second degree felony. Section 775.087 requires reclassification only if the use of a firearm or weapon is not an essential element of the felony charged....

...firearm. Although defendant's direct appeal was affirmed without opinion in 1997, he could still benefit from elimination of the mandatory minimum as to gain time, because gain time does not accrue during the serving of a mandatory minimum sentence. § 775.087(2)(a); Young v....

...With respect to each count, the verdict asked the jury, if it found defendant was guilty of that count, to determine "did he carry, display, threaten to use, or attempt to use a firearm during the commission of that crime?". The jury checked "yes" as to each count. *453 This language was taken from section 775.087(1), Florida Statutes, which provides for enhancement of the level of the felony. Defendant's argument is grounded on section 775.087(2), Florida Statutes (1993), which provides for the three-year mandatory minimum for a defendant convicted of offenses including murder and attempted murder who has "in his possession a firearm." He alleges that he was found by the jury to have carried, displayed, etc....

...great bodily harm. The plea also included an acknowledgment that the crime was committed with a firearm. The defendant understood that the state would contend, and that the court might find, that the sentence should be enhanced by the application of section 775.087(1), Florida Statutes (1985): Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such felony the d...

...se of a firearm. It is undisputed that a defendant convicted of an aggravated battery by using a deadly weapon, under section 784.045(1)(b), Florida Statutes, may not be subjected to *639 further enhancement of the penalty through the application of section 775.087(1), Florida Statutes, because the weapon is, as defined under that subsection, an essential element of the offense....

...5th DCA 1981). See also Williams v. State, 358 So.2d 187 (Fla. 4th DCA 1978). The appellant principally relies upon the statement in Bradfield that an aggravated battery, already being an enhanced battery, is "not subject to being further enhanced by the use of section 775.087(1)." The state argues that an aggravated battery sentence is subject to enhancement by use of a firearm where the conviction is founded only upon subsection (a) (great bodily harm) of 784.045(1), and where the use of a firearm is asserted solely for the purpose of enhancement....

...attempted murder charge. See Brown v. State, 206 So.2d 377 (Fla. 1968). * * * * * * Of course, every deadly weapon as used in section 784.045(1)(b), Florida Statutes (1979), (the second type of aggravated battery) is a weapon within the exception in section 775.087(1), Florida Statutes (1979). Therefore, no conviction of aggravated battery under the "deadly weapon" subsection can be enhanced under section 775.087(1), Florida Statutes (1979)....

...4th DCA 1978), reaching the same conclusion as to an aggravated assault with a deadly weapon (§ 784.021(1)(a), Fla. Stat. (1979)). Here, as there, we do not reach the question as to whether a battery causing great bodily *640 harm, permanent disability or permanent disfigurement can be reclassified under section 775.087(1)(b), Florida Statutes (1979), where a weapon is used because here the allegations, instructions, verdicts and judgments relate only to aggravated battery by a firearm. 394 So.2d at 571. The court also added the following footnote: We do note that if enhancement is to be sought the charging document should carefully allege battery causing great bodily harm, etc., and allege one of the alternative verb forms in Section 775.087(1) relating to use of a weapon or firearm, and the jury should not only be properly instructed but also given alternative verdict forms so they can either find or not find that a weapon or firearm was used....

...d included in the charge that he "did in the process thereof use, threaten to use, or carried a firearm." The first quoted portion of the charge accuses him of the crime while the second quoted portion makes operative the "reclassification" statute. § 775.087. Appellant would have us hold that because the statute under which he was charged provides an alternative means by which to commit a crime, "uses or threatens to use a deadly weapon," that section 775.087 is unavailable to the sentencing judge. He argues that section 775.087 specifically excludes felonies in which the use of a weapon or firearm is an essential element....

...delinquent. Because the appellant's claim is facially sufficient and not refuted by record attachments, we reverse and remand for further proceedings. The remaining claims raised by the appellant are affirmed without further discussion. *1216 Under section 775.087(2)(a), Florida Statutes (2005), a mandatory minimum sentence applies to a defendant's conviction for possession of a firearm by a convicted felon....

...ained in the Information." The jury answered yes to the sole special interrogatory `We find the defendant actually possessed a firearm?' Amos's conviction yielded a sentencing range of 51.15 months at minimum and fifteen years at maximum. Relying on section 775.087(2)(a)3, Florida Statutes, [1] however, the trial court enhanced Amos's sentence to the minimum twenty-five-year sentence for discharge of a firearm causing great bodily harm. Amos claims her sentence is illegal because the jury did not make specific findings that 1) she discharged a weapon, and 2) such discharge caused great bodily harm, which findings are necessary to trigger an enhancement under section 775.087(2)(a)3....

...This issue was addressed in Henly v. State, 812 So.2d 549 (Fla. 5th DCA 2002). Henly was charged as the result of a shooting rampage in a bar in which he shot several people, including himself. Henly, 812 So.2d at 550. Henly's sentence was enhanced, just as Amos's was, under section 775.087(2)(a)3....

...790.001 and, as the result of the discharge, death or great bodily harm was inflicted upon any person, the convicted person shall be sentenced to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison." § 775.087(2)(a)3, Fla....

...tatutes (2005). [1] The jury's verdict included a finding that Mr. Williams was in actual possession of the firearm. The trial court sentenced Mr. Williams to five years in the state prison with a three-year mandatory minimum term in accordance with section 775.087(2)(a)(1), Florida Statutes (2005). Because the State did not present any evidence that Mr. Williams was in actual possession of the firearm, the trial court erred in imposing the three-year mandatory minimum term. Section 775.087(2)(a)(1) "enhances the sentence of a defendant who `actually possessed' a firearm during the commission of the crime." Bundrage v....

...Williams' appellate counsel originally filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Because we determined that an issue of potential merit existed concerning the imposition of a mandatory minimum sentence on Mr. Williams under section 775.087(2)(a)(1), Florida Statutes (2005), we ordered supplemental briefing in accordance with Penson v....

year to life minimum mandatory range under section 775.087(2)(a)(3) does not create a new statutory maximum

...Thus, the criminal activities involved two separate incidents, and consecutive mandatory sentences are permissible."). Even if this case involved only one episode, the trial court's sentences still were legal. The cases upon which Etienne relies all pre-date the Legislature's 1999 amendment of section 775.087(2)(d), Florida Statutes, which added subsection (2)(d) as follows: It is the intent of the Legislature that offenders who actually possess, carry, display, use, threaten to use, or attempt to use firearms or destructive devices be pun...

...hall be imposed for each qualifying felony count for which the person is convicted. The court shall impose any term of imprisonment provided for in this subsection consecutively to any other term of imprisonment imposed for any other felony offense. § 775.087(2)(d), Fla....

...Third, Etienne contends that the trial court erred in sentencing him to life in prison on count three, burglary of an occupied dwelling with a firearm, based on his presumption that the trial court reclassified that charge from a first degree felony to a life felony. Etienne relies upon section 775.087(1)(a), Florida Statutes (2004), which provides, in pertinent part, that a trial court shall reclassify a first degree felony to a life felony if, during the *894 felony, the defendant uses a firearm, "except a felony in which the use of a ......

with a 25-year mandatory minimum pursuant to section 775.087(2), the 10-20-Life statute. We agree.

...Butterworth, Attorney General, Tallahassee, and Robert E. Bodnar, Jr., Assistant Attorney General, Daytona Beach, for Appellee. SHARP, W., J. Olivo appeals from his judgments and sentences in two criminal cases. [1] He was sentenced to ten years in prison for armed burglary of a dwelling pursuant to section 775.087(2), Florida Statutes (2001), commonly referred to as the "10/20/Life" statute, in case number 01-32778. On appeal, Olivo argues that section 775.087(2) violates the separation of powers provision in article II, section 3 of the Florida constitution, [2] because it removes *873 sentencing discretion from the courts in qualifying cases and it unconstitutionally limits the executive function of the prosecution....

...[2] Branches of Government.—Powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein. [3] The 10/20/Life provisions were added to section 775.087 in 1999. State v. Wooten, 782 So.2d 408 (Fla. 2d DCA 2001). Olivo committed the armed burglary in 2001. Olivo moved to declare section 775.087 unconstitutional and raised this issue at his sentencing hearing.

...He was charged with attempted first-degree murder. He ultimately entered a plea of nolo contendere to the offense of aggravated battery with a firearm. The trial court sentenced him to five years' imprisonment with a three-year minimum mandatory term of imprisonment pursuant to section 775.087(2), Florida Statutes (1999)....

...He argued that his sentence was illegal because it included the three-year minimum mandatory. He believes that this court's opinion in Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), rendered all of chapter 775 unconstitutional and specifically rendered section 775.087(2) unconstitutional....

...Thus, the trial court relied on the new statutes to render Mr. Bush's sentence legal. Mr. Bush maintains that the legislature had no power to enact such legislation on a retroactive basis. We do not need to decide how recent legislation may affect our decision in Taylor or even whether Taylor rendered section 775.087(2) unconstitutional....

...statutes in effect at the time of the offense would control sentencing. The three-year minimum mandatory sentence for use of a firearm during the commission of aggravated battery existed prior to chapter 99-188. Mr. Bush's sentence is legal even if section 775.087(2) is the controlling statute....

...ed in accordance with Heggs. See Smith v. State, 761 So.2d 419 (Fla. 2d DCA 2000). Additionally, Harris's sentence for armed burglary in violation of section 810.02(2)(b), Florida Statutes (1995), was improperly enhanced to a life felony pursuant to section 775.087, Florida Statutes (1995). The use of a weapon or a firearm is an essential element of armed burglary. See Fowler v. State, 375 So.2d 879, 880 (Fla. 2d DCA 1979). Thus, section 775.087(1) itself precludes this classification....

...Golden, Assistant Attorney General, Daytona Beach, for Appellee. LAWSON, J. Bill Matthew Figueroa-Montalvo was convicted following a jury trial of burglary of a conveyance with an assault or battery, [1] which was reclassified to a life felony pursuant to section 775.087(1), Florida Statutes (2007), based upon the jury's finding that Figueroa-Montalvo used a firearm to commit the felony. The jury also found that Figueroa-Montalvo actually possessed a firearm during the commission of the offense, which requires imposition of a minimum mandatory sentence pursuant to section 775.087(2)(a)1., Florida Statutes (2007)....

...assault or battery. The trial court imposed a ten-year minimum mandatory sentence. We agree with Figueroa-Montalvo that the plain language of the statute calls for imposition of a three-year minimum mandatory sentence, and reverse for resentencing. Section 775.087(2)(a)1....

...[2] Given a plain reading of the *175 statute, therefore, the ten-year minimum mandatory term is not generally applied to all felonies, but only to the offenses enumerated in the statute. See, e.g., Murray v. State, 491 So.2d 1120 (Fla. 1986) (holding that the ten-year minimum mandatory sentence in section 775.087(2)(a) did not apply to the charge of manslaughter, because it is not one of the enumerated offenses)....

...en imposing the original sentence). We affirm the conviction without comment. CONVICTION AFFIRMED; SENTENCE REVERSED; REMANDED FOR RESENTENCING. GRIFFIN and EVANDER, JJ., concur. NOTES [1] See § 810.02(2)(a), Fla. Stat. (2007). [2] In its entirety, section 775.087(2)(a)1., Florida Statutes (2007), reads: (2)(a)1....

...fenses. The trial court denied relief on both claims. The basis for the lower court's denial of appellant's first claim for relief was that these third-degree felonies of aggravated assault had been reclassified to second-degree felonies pursuant to section 775.087, Florida Statutes, because appellant possessed a firearm during the commission of these crimes....

...21(1)(a), Florida Statutes, however, appellant would be entitled to relief. This court has repeatedly held that the offense of aggravated assault with a firearm under section 784.021(1)(a) cannot be reclassified to a second-degree felony pursuant to section 775.087(1) because use of a firearm is an essential element of that offense....

...nstitute the new offense of "robbery with a mask," a felony of the first degree. If during the robbery the offender carried a weapon and used a mask, the newly created offense would be a life felony. If section 775.0845 is instead interpreted as was section 775.087(1) in Rodriguez, then only those actually wearing masks could be convicted of the enhanced offense. But this is equating an offense reclassification with a sentence enhancer. For example, section 775.087(2)(a)1, Florida Statutes, provides that the person carrying a firearm during the commission of certain felonies must serve a minimum sentence....

...the finding of guilt, because the imposition of the mandatory minimum sentence requires that defendant have had actual, as distinguished from vicarious, possession of the firearm during the robbery. However, the supreme court held in Rodriguez that section 775.087(1), which enhances certain felonies to the next degree if "the defendant" carries a firearm during its commission, only affects the particular defendant carrying the firearm and not his accomplice. Notice, however, that the legislature used the term "defendant" (rather than the term "offender" used in 775.0845) in section 775.087(1) which is more similar to the term "person ... who actually possessed the firearm" used in section 775.087(2)(a)1, which is clearly a sentence enhancer. Perhaps the court placed a limitation on section 775.087(1) because the term "defendant" [3] *578 is singular and more specific (referring to the individual before the bar) whereas the term "offender" can be interpreted more broadly to mean all those who commit the offense....

...he first degree while the other may be sentenced as though the offense was a life felony. The supreme court stated: We hold that, when a defendant is charged with a felony involving the "use" of a weapon, his or her sentence cannot be enhanced under section 775.087(1) without evidence establishing that the defendant had personal possession of the weapon during the commission of the felony. (Emphasis added). Thus the supreme court reads section 775.087(1) as enhancing the potential sentence of an individual rather than creating a new distinct, substantive offense....

consecutive minimum mandatory sentences under section 775.087(2), Florida Statutes (2008), is improper where

...e in this case as the State is asking for. But I'm not sure that my hands are not tied by the statute, quite frankly." Thereupon, the court sentenced defendant to 38.25 months to run consecutively as to counts I and III, and time served on count II. Section 775.087(2)(a)(1)(f) and (r) provides that convictions for aggravated assault or possession of a firearm by a felon require a minimum term of imprisonment of 3 years if the person possessed a firearm during the commission of the offense and regardless of whether the use of the weapon is an element of the felony....

...de have been enhanced, penalty cannot then be increased again by ordering that sentences run consecutively). We therefore reverse the sentences and remand for resentencing. We affirm on the cross-appeal. WARNER and TAYLOR, JJ., concur. NOTES [1] See § 775.087(2), Fla....

...tion, upon the defendant's resentencing, of a three-year minimum mandatory term for use of a firearm during the commission of a *800 robbery was proper, even though it resulted in a harsher sentence than that imposed during the original sentencing. "Section 775.087(2), Florida Statutes, contains no provision permitting the trial court to exercise its discretion in imposing a three-year minimum mandatory sentence once a defendant is convicted of certain enumerated felonies." Id. (citations omitted); see also State v. Ross, 447 So.2d 1380, 1382-83 (Fla. 4th DCA 1984)(remanded for resentencing to impose three-year minimum mandatory imprisonment term in light of section 775.087(2)'s clear mandate); State v. Boykins, 647 So.2d 891, 892 (Fla. 2d DCA 1994)(reversing and remanding for resentencing to include three-year minimum mandatory term, in light of compulsory nature of section 775.087(2), where jury found that defendant used firearm in commission of assault), dismissed, 657 So.2d 1162 (Fla.1995); State v....

...Brendell, 656 So.2d 594, 594-95 (Fla. 5th DCA 1995)(vacating sentence and remanding for resentencing to include three-year minimum mandatory where defendant convicted of robbery with firearm); Kelly v. State, 414 So.2d 1117, 1118 (Fla. 4th DCA 1982) (section 775.087(2) is self-executing; any defendant meeting its criteria is not eligible for release from prison prior to serving minimum sentence required)....

...Defendant had entered a plea of nolo contendere to attempted second degree *410 murder, a second degree felony. Apparently, due to the involvement of a deadly weapon, the trial court enhanced Defendant's sentence to a first degree felony pursuant to section 775.087(1)(b), Florida Statutes (1991)....

...Upon remand, the record reveals that the trial court resentenced Defendant to twenty years, exceeding the statutory maximum of fifteen years for a second degree felony. Apparently, the trial court had reclassified the attempted second degree murder to a first degree felony pursuant to section 775.087(1), Florida Statutes (1991)....

...ctions and sentences. Convictions and Sentences Imposed Booth was convicted following a jury trial of third degree felony murder, which was enhanced from a second degree felony to a first degree felony based upon Booth's use of a firearm pursuant to section 775.087(1), Florida Statutes (2006)....

...With respect to the aggravated assault with a firearm charge, a third degree felony, the sentencing range was again enhanced (to ten years) based upon the trial court's HFO finding. The trial court imposed a ten-year sentence on this charge, with a three-year minimum mandatory pursuant to section 775.087(2)(a)1., Florida Statutes....

...Again, this concession was proper. The felony underlying Booth's murder conviction was aggravated assault with use of a firearm. Because Booth's use of a firearm was an essential element of the offense, as charged and proven, the firearm reclassification was not available. Id.; § 775.087(1), Fla....

...With the court's HFO finding, the sentencing range doubled to thirty years on this charge. See § 775.084(4)(a)2., Fla. Stat. (2006). Mendenhall Issue Booth's final argument is that he could not receive a life sentence on the third degree felony murder charge through application of the 10-20-life statute, section 775.087(2)(a), Florida Statutes....

...1st DCA 2005), and is currently being reviewed by the Florida Supreme Court. See Mendenhall v. State , No. SC09-400 (jurisdiction accepted July 27, 2009). We agree with the panel decision in Mendenhall, and with Judge Warner's dissent in Collazo (joined by Judges Gunther and Polen), that the relevant provisions of section 775.087(2) are unambiguous and provide for a minimum mandatory sentence of twenty-five years to life, based upon discharge of a firearm resulting in death or great bodily harm to the victim during the course or commission of the underlying felony, irrespective of the maximum penalty on the underlying charge....

...Accordingly, we affirm the life sentence, applying Mendenhall, and certify conflict on this issue with Collazo, Johnson, Thurston, Leary, Sousa and Wilson. AFFIRMED IN PART, REVERSED IN PART AND REMANDED WITH DIRECTIONS; CONFLICT CERTIFIED. ORFINGER and JACOBUS, JJ., concur. NOTES [1] § 775.087(2)(a), Fla....

...lly pronounce the imposition of a mandatory minimum sentence, but the defendant's written sentencing documents state that the defendant must serve a 10-year mandatory minimum on the robbery count. The imposition of a mandatory minimum sentence under section 775.087(2) of the Florida Statutes is a nondiscretionary duty of a trial court when the record indicates that the defendant qualifies for mandatory minimum sentencing. A trial court must impose the mandatory *83 minimum sentence once a defendant is convicted of an enumerated felony under section 775.087(2), and the failure to do so is reversible error....

...5th DCA 2003), our court held that when an oral sentence does not include the applicable mandatory minimum sentence it is an illegal sentence and, accordingly, subject to correction. In that case, the defendant was sentenced to a term of twenty years' incarceration which included a 3-year mandatory minimum sentence under section 775.087(2) of the Florida Statutes (2000)....

In 1997, we considered the application of section 775.087(2)(a), Florida Statutes (1993), where a defendant

...een the allegation of a sentencing enhancement for the use of a firearm in the charging document and the imposition of a greater enhancement at the sentencing of the defendant for the discharge of a firearm. These cases have arisen in the context of section 775.087(2)(a), the "10-20-Life Statute." In *555 one of these cases, we said that "[t]he grounds for enhancement of a sentence must be charged in the information" and that "neither the jury's finding that the firearm was discharged nor the in...

...fect in the information." Whitehead v. State, 884 So.2d 139, 140 (Fla. 2d DCA 2004) (concluding that "[a] firearm may be used without being discharged; therefore, an allegation of `use' will not sustain an enhancement for discharging a firearm under 775.087(2)(a)(2)"); see also Adams v....

...cannot be legally imposed unless the statutory elements are precisely charged in the information") (emphasis added); Rogers v. State, 875 So.2d 769 (Fla. 2d DCA 2004) (reversing life sentence imposed for discharge of a firearm with the infliction of great bodily harm under section 775.087(2)(a)(3) where the information alleged use of a firearm); Jackson v. State, 852 So.2d 941 (Fla. 4th DCA 2003) (reversing life sentence imposed for discharge of a firearm with the infliction of great bodily harm under section 775.087(2)(a)(3) where the information alleged that the defendant carried a firearm)....

...In each of the cases cited, the State's information alleged the use of a firearm, but the trial court imposed a sentence enhancement appropriate for the discharge of a firearm—a specific and important difference in the application of the minimum terms mandated by section 775.087(2)(a). The use of a firearm requires a ten-year minimum sentence under section 775.087(2)(a)(1), while the discharge of a firearm requires a twenty-year minimum under section 775.087(2)(a)(2). Furthermore, if death or the infliction of great bodily harm results from the discharge of a firearm, then section 775.087(2)(a)(3) requires a twenty-five-year minimum sentence. The requirement in Rogers, Adams, Whitehead, Davis, Jackson, and similar decisions for precision in the allegations of fact necessary to support a penalty enhancement stems from the complexity of section 775.087 and the variety of sentencing outcomes possible under its multiple provisions. See Inmon v. State, 932 So.2d 518 (Fla. 4th DCA 2006) (reviewing the provisions of section 775.087 in detail and explaining the necessity for the State to plead specifically the basis for a requested enhancement under that statute)....

...anguage in the charging *556 document is substantially less than in the cases upon which he relies. The penalty enhancer that the State sought to apply to Mr. Freudenberger is not subject to increase or decrease in the degree of its severity. Unlike section 775.087, section 775.085 does not have multiple parts and a complex set of penalty provisions....

twenty-five-year minimum enhancement set forth in section 775,087(2)(a)3., Florida Statutes (2007), commonly

...Although the argument was preserved, it was not addressed by the trial court and the State has not responded to the argument in its answer brief. Nevertheless, we reject the argument because it appears that the primary offense was properly scored. See § 775.087(1), Fla....

...Hagan, Assistant Attorney General, Daytona Beach, for Appellee. PLEUS, J. The defendant's conviction for possession of a firearm by a convicted felon is affirmed. However, we remand for a corrected sentence. The trial court erroneously believed the three-year mandatory minimum sentence contained in section 775.087(2)(a)1.r., Florida Statutes, for actual possession applied here....

...Further, the appellant's claim, which is that the trial court erred in reclassifying his aggravated battery conviction from a second-degree felony to a first-degree felony based on his use of a weapon, because the use of a weapon was an essential element of this conviction, is facially sufficient. See § 775.087(1), Fla....

imprisonment, it was undisputed at the hearing that section 775.087, Florida Statutes (1999), applied.1 As a result

...As to the destructive device count, the jury found appellant actually possessed and discharged a destructive device. Based on the jury's finding, the trial court felt obligated to sentence appellant to a mandatory minimum term of twenty years on the discharge of a destructive device count, pursuant to section 775.087(2)(a)2., Florida Statutes (1999)....

...gator gave essentially the same testimony under questioning of defense counsel. Moreover, appellant never argued that the object was not a destructive device. [1] Contesting his sentence, appellant argues that the court erred by sentencing him under section 775.087(2)(a)2....

...lly makes, possesses, throws, projects, places, discharges, *497 or attempts to make, possess, throw, project, place, or discharge any destructive device" is guilty of a second degree felony when there is an intent to damage property. § 790.161(2). Section 775.087(2) provides for the penalty: (a)1....

...See Williams, 776 So.2d at 1070. Because there are many and varied definitions of what constitutes the "discharge" of a destructive device, we interpret that statute most favorably to the accused and conclude that to discharge a destructive device for purposes of 775.087(2) providing for a mandatory minimum twenty-year sentence, the device must explode, i.e., function as it was intended....

under Florida’s reclassification statute, section 775.087(1), Florida Statutes (2011). The First District’s

...Leary was charged by information with the second degree felony of aggravated battery with a firearm and/or resulting in great bodily harm under section 784.045, Florida Statutes (2002). The information further provided a violation of the "10-20-Life" statute for discharging the weapon. Fla. Stat. § 775.087(2)(a)1-3(2002)....

...On remand, the trial court shall either resentence Young on count two within the maximum allowed or attach a portion of the record that refutes Young's claim. See, e.g., Williams v. State, 590 So.2d 526 (Fla. 2d DCA 1991) (stating that enhancement for use of a firearm under section 775.087 is improper on attempted robbery with a firearm conviction)....

...The charge of second degree murder, to which the defendant pled guilty, is a felony of the first degree, punishable by imprisonment for a term of years not exceeding life. § 782.04, Fla. Stat. (1979); Page v. State, 687 So.2d 1357 (Fla. 3d DCA 1997). If enhanced for use of a weapon, see § 775.087(1), Fla....

...The second charge to which the defendant pled guilty was attempted first degree murder. It is clear from the materials the defendant has submitted that the charge was attempted first degree murder with a weapon. That offense is a life felony. See § 782.04(1), 777.04(4)(a), 775.087(1)(a), Fla....

...The defendant argues that it was impermissible to enhance the attempted first degree murder charge for use of a weapon. The defendant is mistaken, as use of a weapon is not an essential element of the crime of attempted first degree murder. Strickland, 437 So.2d at 152; § 775.087(1), Fla....

...The State properly concedes that defendant-appellant Lee is entitled to relief with respect to his sentence on count five, attempted second degree murder with a firearm. Because the offense was reclassified on account of the use of a firearm, it is a felony of the first degree. See §§ 782.04(2), 777.04(4)(d), § 775.087, Fla....

...Michael R. Dutko of Bogenschultz & Dutko, P.A., Fort Lauderdale for appellee. TAYLOR, J. The sole question posed by this appeal is whether escape from a Jimmy Ryce facility is subject to the mandatory minimum penalties of the "10/20/Life" statute, section 775.087 (1999)....

...It provides in pertinent part that any person convicted of an enumerated felony, who, during the commission of the offense, possessed a firearm, "shall be sentenced to a minimum term of imprisonment of 10 years." Among the enumerated felonies is "[e]scape." Fla. Stat. § 775.087(2)(a)1 i. In Nelson v. State, 811 So.2d 761, 763 (Fla. 4th DCA 2002), we summarized the legislative purpose of this statute, as follows: In Chapter 99-12, Laws of Florida (1999), the session law creating section 775.087(2), the legislature noted that Florida ranks as one of the most violent states in the nation and that "criminals who use guns during the commission of violent crimes pose an increased danger to the lives, health, and safety of Florida's citizens." The legislature went on to state that the intent of the enactment of section 775.087 was to ensure that offenders who use guns to commit violent crimes would receive longer mandatory prison terms than provided in the then-current law, "effectively incapacitat[ing] the offender, prevent[ing] future crimes, and reduc[ing] violent crime rates." Id....

...His only issue which we find to have merit is that his sentence on the charge of aggravated battery with a firearm was impermissibly enhanced since the jury failed to find the requisite conditions precedent for such sentence. Henly's sentence was enhanced under the provisions of section 775.087(2)(a)3, Florida Statutes: Any person who is convicted of [aggravated battery with a firearm among other felonies] ......

...and, as the result of the discharge, death or great bodily harm was inflicted upon any person, the convicted person shall be sentenced to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison." § 775.087(2)(a)3., Fla....

...[1] The defendant argues that under the quoted language, the court may impose a life sentence, but not a mandatory minimum sentence of life. We disagree. When the ten-twenty-life statute is read as a whole, the statute expressly characterizes these sentences as mandatory minimum terms of imprisonment. Id. § 775.087(2)(c)....

Criminal Procedure 3.800(a). Morgan asserts that section 775.087(2)(d), commonly known as Florida’s “10-20-Life”

...obation. This court affirmed his conviction. State v. Parker, 812 So.2d 495 (Fla. 4th DCA 2002). In ground fifteen of his motion, the defendant challenged his twenty-five year mandatory minimum sentence for discharging a firearm, imposed pursuant to section 775.087(2)(a)3, Florida Statutes (2000)....

...376-C, pursuant to a plea agreement which also addressed other uncharged crimes. He now complains that the sentences were illegal for the two crimes: (1) kidnaping, a life felony pursuant to section 787.01(2), Florida Statutes (1989) and enhanced by section 775.087(1) for the use of a weapon; and (2) armed sexual battery pursuant to section 794.011(3), Florida Statutes (1989)....

...Bell was charged with attempted first degree murder. The information alleged that Bell attempted to kill Clifford Wheeler, "and in the course of the commission of the attempted murder possessed, used, or attempted to use a firearm in violation of Florida Statute 775.087, 782.04(1)(a) and 777.04." A jury found Bell guilty of the lesser offense of attempted second degree murder with a firearm. The jury also found that Bell had discharged the firearm. Because of this last finding, the trial judge sentenced Bell to a mandatory minimum period of twenty years consistent with section 775.087(2)(a)2., Florida Statutes (2002)....

...ion should not be barred, based on collateral estoppel, when invoking that principle "would result in a manifest injustice." Id. at 292. Based on Altieri, we reverse the mandatory minimum sentence and remand to the trial court for resentencing under section 775.087(2)(a)1. The jury's finding that Bell discharged a firearm satisfies the requirement that he "possessed" it within the meaning of section 775.087(2)(a)1., a factor contained in the charging document....

...spectively. [1] Each count of the amended information also charged that, "in the course of committing the offense[, defendant] had in his possession a semiautomatic firearm and its high-capacity detachable box magazine, as defined in and contrary to Section 775.087(2)(a) and (b), Florida Statutes." A jury found defendant guilty, as charged, of both offenses....

...tted the drug offenses charged, he had "had in his possession a semiautomatic firearm and its high-capacity detachable box magazine." Therefore, the trial court declined to impose for either offense the 8-year minimum mandatory sentence contained in Section 775.087(2), Florida Statutes (1989)....

..." was found next to the nightstand, within reach of the bed and the drugs. The carbine belonged to defendant; had been next to the nightstand during the transactions which had taken place between Truxell and defendant; and was in good working order. Section 775.087(2)(a), Florida Statutes (1989), provides, in relevant part, that: Any person who is convicted of ......

...ght most favorable to the state, that evidence was sufficient to support the jury's findings that, at the time defendant *266 committed the offenses with which he was charged, he did have the semiautomatic carbine "in his possession." The portion of Section 775.087(2)(a), Florida Statutes (1989), upon which the state relies to support its argument that the trial court was obliged to sentence defendant to an 8-year mandatory minimum prison term for the two offenses of which defendant was convicted was only recently added to that statute by Chapter 89-306, Section 3, Laws of Florida. We have been unable to discover any decisions which address the meaning of the language used in this relatively recent amendment. However, that portion of Section 775.087(2)(a) which requires a 3-year minimum mandatory sentence for "[a]ny person ......

...75-298, § 3, Laws of Fla.); and has been the subject of construction in a number of decisions. In Earnest v. State, 351 So.2d 957 (Fla. 1977), our Supreme Court was called upon to decide whether the 3-year minimum mandatory sentence provision found in Section 775.087(2) applied to one convicted of armed robbery "`not predicated on her personal possession of the firearm but rather on her active and knowing aid to him who did possess it.'" Id....

...State, 514 So.2d 1142 (Fla. 1st DCA 1987). [4] More recently, in Williams v. State, 517 So.2d 681 (Fla. 1988), aff'g, 502 So.2d 1307 (Fla. 3d DCA 1987), the Court was presented with the following issue: "[W]hether the three-year mandatory minimum required by section 775.087(2) ......

...tence provision did apply. Of greater interest for the purpose of this appeal, however, is the fact that, in Williams, both the Third District and the Supreme Court treated the defendant as having had the firearms "in his possession" for purposes of Section 775.087(2), even though they were found at his feet (517 *267 So.2d at 682) or "within an arm's reach" (502 So.2d at 1308), rather than on his person. A similar result was reached in Fipps v. State, 553 So.2d 382 (Fla. 1st DCA 1989), where the defendant argued that it was error to apply the 3-year minimum mandatory sentence provision contained in Section 775.087(2) to him because the firearm had been found next to him in the truck he was driving, rather than on his person. However, this court, citing Williams, held that "the three-year mandatory minimum was properly applied because the defendant `had in his possession' the ... rifle within the meaning of Section 775.087(2)." Id....

...1st DCA 1982) (proof that firearm "was physically available, readily accessible, within the reach of [defendant's] hand, capable of being used by him immediately" sufficient to establish "actual," as opposed to "vicarious," possession for purposes of Section 775.087(2))....

...State, 377 So.2d 1161, 1162 (Fla. 1979). It appears relatively clear to us that the word "possession," as used in the phrase "had in his possession a `firearm' ... or `destructive device'" [which is the prerequisite to a 3-year minimum mandatory sentence pursuant to Section 775.087(2)]; and the word "possession," as used in the phrase "had in his possession a semiautomatic firearm and its high-capacity detachable box magazine or a machine gun" [which is the prerequisite to an 8-year minimum mandatory sentence pursuant to Section 775.087(2)]; were both intended by the legislature to have the same meaning. Moreover, it appears to us that the manifest legislative intent behind both the 3-year and the 8-year minimum mandatory sentence provisions contained in Section 775.087(2) is twofold: to discourage accessibility of the weapons specified during the commission of the offenses enumerated; and, thereby, to reduce the likelihood of death or serious bodily harm to victims, law enforcement officers and bystanders....

...dgment of acquittal as to the portion of each count charging possession of "a semiautomatic firearm and high-capacity detachable box magazine" when the offense was committed, and declined to impose the 8-year minimum mandatory sentence called for by Section 775.087(2)....

...rearm and its high-capacity detachable box magazine"; and remand to the trial court for further proceedings. On remand, the trial court is directed to enter judgments in accordance with the jury's verdicts, and to sentence defendant as called for by Section 775.087(2), Florida Statutes (1989)....

...ts the state to appeal "[a] ruling granting a motion for judgment of acquittal after a jury verdict." See State v. Hartzog, 575 So.2d 1328 (Fla. 1st DCA), review denied, 581 So.2d 1308 (Fla. 1991). Likewise, because the minimum sentence specified in Section 775.087(2), Florida Statutes (1989), is mandatory, if the state's argument were to prove correct, the sentences imposed by the trial court would be illegal. Section 924.07(1)(e), Florida Statutes (1989), permits the state to challenge a sentence "on the ground that it is illegal." See generally Zimmerman v. State, 467 So.2d 1119 (Fla. 1st DCA 1985). [3] In its entirety, Section 775.087(2)(a), Florida Statutes (1989), reads: (2)(a) Any person who is convicted of: 1....

...State, 589 So.2d 1374, 1376 (Fla. 1st DCA 1991), contains the statement that "[c]onstructive or vicarious possession of a firearm, although sufficient to sustain a conviction for robbery with a firearm, is insufficient to constitute possession under Section 775.087(2), Florida Statutes" (emphasis in original); and that similar language is contained in Bellinger v. State, 514 So.2d 1142, 1143 (Fla. 1st DCA 1987) ("While constructive or vicarious possession is sufficient to sustain a conviction for robbery with a firearm, it is insufficient to constitute possession under [Section 775.087(2)]")....

firearm during the commission of the offense. See § 775.087(l)(b), Fla. Stat. The mandatory minimum term was

...grams of marijuana, five years in prison to run concurrently; for resisting arrest with violence, five years in prison to run concurrently; for aggravated assault with a firearm, three years, subject to the three-year mandatory minimum set forth in Section 775.087(2), Florida Statutes to run consecutively to the other terms....

...egislative authorizations, that stacking is permissible. We agree that the trial judge did not err in imposing the two consecutive mandatory minimum sentences in this case. In Palmer v. State, 438 So.2d 1 *525 (Fla. 1983), the court established that section 775.087(2) empowered the trial judge to impose only one three-year mandatory minimum sentence for all offenses arising from a single criminal episode....

...e mandatory minimum sentences could not be imposed pursuant to Section 893.135, Florida Statutes, for three drug offenses which occurred in a single criminal episode. Numerous cases involving the imposition of mandatory minimums imposed under either section 775.087(2) or section 893.135 have followed Palmer and determined that consecutive mandatory minimum sentences could not be imposed pursuant to either of those statutes alone for multiple offenses which occurred in a single criminal episode....

...atutes. We see no authority in Palmer for concluding that separately authorized mandatory minimums cannot be imposed consecutively under these circumstances. Further, we find no error in imposing the three-year mandatory minimum sentence pursuant to section 775.087(2) consecutively to the 14-year term imposed for trafficking in cocaine (which included the five-year mandatory minimum pursuant to section 893.135)....

...m term. THE PROCEDURAL BACKGROUND The State charged Mr. Linnon with attempted first-degree murder involving the actual possession and discharge of a firearm that caused great bodily harm to the victim, in violation of sections 782.04(1), 777.04, and 775.087(2)(a)(3), Florida Statutes (2005)....

...Linnon guilty of the lesser included offense of attempted second-degree murder, sections 777.04 and 782.04(2). The jury also found that Mr. Linnon had possessed and discharged a firearm during the commission of the offense, causing great bodily harm to the victim. The jury's findings invoked the provisions of section 775.087(2)(a)(3) that required the imposition of a mandatory minimum term of twenty-five years....

...Linnon and his family have no contact with the victim and one of the State's trial witnesses. But the prosecutor made no objection to the trial court's omission to apply the mandatory minimum term to Mr. Linnon's twenty-five-year sentence in accordance with the provisions of section 775.087(2)(a)(3)....

...Linnon's written sentence was consistent with the trial court's *72 oral pronouncement. On March 7, 2007, Mr. Linnon filed his notice of appeal. On March 16, 2007, approximately one month after the sentencing hearing, the State filed a "motion to correct and/or clarify sentence." In its motion, the State observed that section 775.087(2)(a)(3) required that Mr....

...t Mr. Linnon's twenty-five-year term of imprisonment was a mandatory minimum sentence. On the same day, the trial court entered an amended judgment and sentence indicating that Mr. Linnon's sentence was subject to the mandatory minimum provisions of section 775.087(2)(a)(3)....

...Linnon raises two points concerning his conviction for attempted second-degree murder. These points are without merit and do not warrant further mention. Accordingly, we limit our discussion to Mr. Linnon's challenge to the trial court's decision to amend his sentence to reflect the mandatory minimum requirement of section 775.087(2)(a)(3)....

...In Montgomery, the defendant argued that, due to the nature of the jury's general verdict, reclassification of his conviction was improper because it was not clear that the jury found him guilty of aggravated battery causing great bodily harm. The First District agreed, explaining: Section 775.087(1) permits reclassification and the consequential enhancement of penalties for the crime of aggravated battery causing great bodily harm when a weapon is used to commit the crime. Lareau v. State, 573 So.2d 813 (Fla. 1991). Before a conviction for aggravated battery may be reclassified pursuant to section 775.087, the jury must make a factual finding that the defendant committed the crime while using a firearm....

...n to be the finder of fact with regard to matters concerning the criminal episode. To allow a judge to find that an accused actually possessed a firearm when committing a felony in order to apply the enhancement or mandatory sentencing provisions of section 775.087 would be an invasion of the jury's historical function and could lead to a miscarriage of justice.......

...We are of the view that the legislature purposely intended the mandatory minimum detention provision of that section to act as an example of what might lie ahead should one persist in further criminal activity. We reject the juvenile's argument that we should analogize section 790.22(9), with section 775.087(1), Florida Statutes (1999)....

...Perform 100 hours of community service; and may 2. Be placed on community control or in a nonresidential commitment program. (Emphasis added.) [2] See State v. Rodriguez, 602 So.2d 1270 (Fla.1992)(concluding defendant's sentence could not be enhanced under section 775.087(1), without evidence of personal possession of the weapon at issue).

...present for resentencing. See Ewell v. State, 707 So.2d 1164 (Fla. 1st DCA 1998); Arkadile v. State, 695 So.2d 1318 (Fla. 2nd DCA 1997). KAHN and VAN NORTWICK, JJ., CONCUR. NOTES [1] The trial court did not impose a minimum mandatory sentence under section 775.087(2)(d), Florida Statutes (Supp.1996), although the judgment makes reference to section 775.087....

...In both cases, the trial court sentenced Hill to life in prison without parole under the Prison Releasee Reoffender Punishment Act ("PRRPA") in section 775.082(9)(a)3, Florida Statutes (2002). In both cases, the trial court also imposed a ten-year mandatory minimum sentence for the use of a firearm under section 775.087(2) and (3)....

...ict form. The contention that aggravated assault with a firearm is a greater offense than aggravated assault with a deadly weapon is predicated on the fact that the firearm aspect carries a minimum mandatory sentence of three years imprisonment. See § 775.087(2)(a)(1), Fla....

...However, an information charging and a special verdict finding that the defendant committed an aggravated assault with a firearm, while not enhancing the offense from a third degree felony, does implicate the three year minimum mandatory sentence for use of a firearm found in section 775.087(2), Florida Statutes....

...luded offense of discharging a firearm in public, the court analyzed the offense of aggravated assault. Fernandez was charged with aggravated assault "with a deadly weapon, to wit: a firearm." The State sought the minimum mandatory sentence found in section 775.087(2), Florida Statutes....

...lt with a deadly weapon, and next decides that the weapon was a firearm. Technically, the statutory offense of aggravated assault does not make any distinction between assault with a firearm or any other deadly weapon. This distinction is created by section 775.087(2), Florida Statutes (1987)....

...Fernandez makes clear that the offense at issue in the instant case was aggravated assault with a deadly weapon and that the use of a firearm is a sentencing factor which must be alleged and expressly found by the jury in order to implicate the minimum mandatory found in section 775.087(2), Florida Statutes. As the Fernandez court explained, the distinction between aggravated assault with a deadly weapon and aggravated assault with a firearm is the sentencing consideration found in section 775.087(2)....

...t have the discretion to impose a youthful offender sentence because of the 10/20/Life statute. Appellant was convicted of kidnaping, a first degree felony, section 787.01(2), and the jury found that he possessed a gun. Under our 10/20/Life statute, section 775.087, Florida Statutes (2000), a first degree felony in which a gun is used is reclassified as a life felony. § 775.087(1)....

...I agree with the majority's holding insofar that if the 10/20/Life reclassification were mandatory, then kidnaping with a firearm would become a life felony and the youthful offender sentence would be inapplicable. Compare § 958.04(1)(c), Fla. Stat. (2001) with § 775.087(1)(c), Fla....

...y weapon or firearm, or during the commission of such felony the defendant commits an aggravated battery, the felony for which the person is charged shall be reclassified as follows: (a) In the case of a felony of the first degree, to a life felony. § 775.087(1)(a), Fla....

...We affirm Helms' convictions but reverse part of his sentence. The trial court sentenced Helms to life as a prison releasee reoffender with a ten-year minimum mandatory for the robbery offense and to time served for the obstructing offense. The ten-year minimum mandatory term was imposed pursuant to section 775.087(2)(a)(1), Florida Statutes (2001), the 10/20/Life statute....

...on while possessing a firearm. The trial court sentenced Appellee to two years of community control followed by three years of probation for the crime. The State correctly asserts that the trial court erred by imposing this sentence contrary *800 to section 775.087, Florida Statutes (2002)....

...1st DCA 2000) (noting imposition of three-year minimum mandatory prison term a nondiscretionary duty of trial court where record demonstrates defendant had a firearm in his possession); State v. Calzada-Padron, 708 So.2d 287 (Fla. 2d DCA 1998) (noting section 775.087(2) contains no provision permitting trial court to exercise discretion in imposing three-year minimum mandatory prison sentence once defendant convicted of certain enumerated felonies). The crime for which Appellee was convicted is one of the enumerated felonies for which imposition of the three-year minimum sentence is mandated. See § 775.087(2)(a), Fla....

...The State of Florida ("the State") appeals the trial court's order which: (1) sentences Terry Scanes ("the Defendant") below the recommended guidelines; (2) imposes a three-year minimum mandatory sentence, as opposed to the statutorily required ten-year minimum mandatory sentence set forth in section 775.087, Florida Statutes (2005), as to the Defendant's kidnapping conviction; and (3) fails to impose one year of probation, as required by section 741.281, Florida Statutes (2005)....

...Hubert told them *661 what occurred, and the Defendant was subsequently arrested and charged. According to the sentencing scoresheet, the Defendant's recommended sentence fell within a range of 97.3 months (8.1 years) to life in prison. Pursuant to section 775.087, Florida Statutes (2005), the trial court was required to impose: (1) a three-year minimum mandatory sentence for possession or use of a firearm during the commission of or the attempt to commit an aggravated assault; (2) a three-year minimum sentence for possession of a firearm by a convicted felon; and (3) a ten-year minimum mandatory sentence for possession or use of a firearm during the commission of or the attempt to commit a kidnapping. Section 775.087, Florida Statutes (2005), provides in part as follows: 775.087 Possession or use of weapon; aggravated battery; felony reclassification; minimum sentence....

...Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee. PER CURIAM. Appellant was adjudged guilty of shooting into an occupied dwelling and was sentenced to seven years' imprisonment. In imposing the sentence the trial court invoked Section 775.087(2), Florida Statutes, thereby making appellant ineligible for parole until he had served a minimum term of imprisonment of three years. The sole point on appeal is whether the judge erred in imposing a mandatory three year minimum imprisonment under § 775.087....

...The seven year sentence imposed by the trial court is not excessive in that the maximum sentence for this offense, under Section 790.19, Florida Statutes, is fifteen years. However the offense for which appellant was convicted is not one of the enumerated offenses under § 775.087(2) for which the possession of a "firearm" during the commission thereof, requires a mandatory minimum three years' imprisonment before the defendant is eligible for parole. Since appellant was not convicted of one of the crimes set forth in § 775.087(2), he may not be sentenced under this statute. *629 Accordingly appellant's conviction is affirmed and the case is remanded with instructions that the trial court enter an appropriate order striking from appellant's sentence the words "Mandatory Minimum 3 Yr. Sentence, F.S. 775.087(2)." CROSS, ALDERMAN and LETTS, JJ., concur.

...djudication of delinquency. The state argues that the trial court lacked discretion under section 790.22(9), Florida Statutes (1997) [1] to withhold adjudication of delinquency in sentencing A.B. We disagree. Unlike this statute's adult counterpart, section 775.087(2), Florida Statutes (1997), which provides that when any person is convicted of such crimes as aggravated assault [2] and during the commission of the offense, such person possessed a firearm, "adjudication of guilt or imposition of...

...State, 589 So.2d 372 (Fla. 1st DCA 1991), for the proposition that these issues can be raised only on direct appeal. We reverse. This court has held consistently that a challenge to the imposition of a three-year minimum sentence imposed pursuant to section 775.087(2), Florida Statutes (1989), based on the alleged lack of possession of a weapon, is appropriately raised in a motion to correct illegal sentence. Hubbard v. State, 667 So.2d 936, 937 (Fla. 2d DCA 1996). A challenge to the reclassification of a felony based on possession of a weapon or firearm pursuant to section 775.087(1), Florida Statutes (1989), should not be treated differently....

...f thirty years for the attempted second-degree murder, to be served concurrently with life sentences for the robbery and the armed burglary. The court also imposed a minimum mandatory term of twenty-five years' imprisonment on each count pursuant to section 775.087(2), Florida Statutes (1999) (10-20-Life)....

to thirty years imprisonment. See § 775.087, Fla. Stat. (2011). Appellant’s sentence for Count

...In a somewhat similar case, State v. Ross, 447 So.2d 1380 (Fla. 4th DCA), rev. denied, 456 So.2d 1182 (Fla. 1984), this *1160 court held that the discretionary provisions of section 397.12 did not constitute an exception to the minimum mandatory sentence provided by section 775.087(2)(a), Florida Statutes (1981). Section 775.087(2)(a) provided that any person convicted of certain specified offenses while having a firearm in his possession shall be sentenced to a three year minimum term of incarceration and further: Notwithstanding the provisions of s....

...Ross, 447 So.2d at 1382. The basis for this rule is the idea that the more recent statute is usually the last and controlling statement of legislative intent, as the legislature is presumed to be aware of the earlier law. The court found the language of section 775.087(2)(a) to be unambiguous in providing for a minimum mandatory sentence for the particular offense....

...The trial court in Ross apparently based its sentence on the fact that Ross was under the influence of drugs when he committed the criminal offense. THIS CASE McKendry relies primarily on a statutory comparison of section 790.221(2) to other penal statutes such as section 775.087(2)(a) which have mandatory minimum sentences and have explicit preclusive language barring any suspension of sentence. This preclusive language is lacking in section 790.221(2). In addition, section 775.087(2)(a) expressly refers to section 948.01 in barring any suspension of the mandatory sentence....

...As to burglary, defendant was convicted of burglary of an occupied dwelling with an assault or battery, in violation of section 810.02(2)(a), Florida Statutes (1995), which is a first degree felony punishable by life imprisonment. The conviction was enhanced to a life felony on account of the use of a weapon. See id. § 775.087(1).

...In this case, appellant pled no contest to the offenses of carrying a concealed firearm, resisting an officer without violence, and robbery. As we held in Asbell v. State, 715 So.2d 258 (Fla.1998), rule 3.702 clearly states that additional points may not be assessed against offenses enumerated in section 775.087(2), Florida Statutes (1993). See id. at 258. Because robbery is one of the enumerated offenses in section 775.087(2), additional sentencing points may not be assessed for that offense....

...e gun during the commission or attempt to commit a crime will result in additional sentence points. Eighteen sentence points are assessed if the offender is convicted of committing or attempting to commit any felony other than those enumerated in subsection 775.087(2) while having in his or her possession a firearm...." Fla....

...ee murder with a firearm, is illegal. He maintains that the maximum sentence that could be imposed on count one was 30 years' incarceration because his conviction for attempted second degree murder, which is classified as a first degree felony under section 775.087(1)(b) of the Florida Statutes (2007), carries a maximum sentence of 30 years under section 775.082(3)(b) of the Florida Statutes (2007)....

...risonment, with a mandatory minimum term of 25 years. We reversed and remanded the defendant's sentence, holding as follows: Because the jury found that Wooden's discharge of a firearm resulted in great bodily harm, the minimum mandatory range under section 775.087(2)(a)(3) was twenty-five years to life imprisonment....

...However, once the trial court imposed the minimum mandatory sentence of twenty-five years, it could not exceed the thirty year maximum penalty for a first degree felony under section 775.082(3)(b). The twenty-five year to life minimum mandatory range under section 775.087(2)(a)(3) does not create a new statutory maximum penalty of life imprisonment....

...granted 26 So.3d 582 (Fla.2009) does not suggest a different result. In Mendenhall, we approved the imposition of a thirty-five year sentence on a first degree felony where the trial court also imposed a thirty-five year minimum mandatory sentence pursuant to section 775.087(2)(a)(3)....

...b). Therefore, the defendant's sentence for count one must be reversed and this matter remanded for the trial court to correct the defendant's sentence. AFFIRMED in part, REVERSED in part, and REMANDED. TORPY and LAWSON, JJ., concur. NOTES [1] See §§ 775.087(1), 775.087(2)(a)(2), 775.087(2)(a)(3), 777.04, 782.04, Fla. Stat. (2007). [2] See §§ 775.087(2) & 784.045(1)(a)(2), Fla....

...Henry, Assistant Attorney General, Daytona Beach, for Appellee. ORFINGER, R. B., J. Following a restaurant robbery in December, 2000, Marques Hayden was arrested and charged by information with the offense of robbery with a firearm and a mask in violation of sections 812.13(2)(a), 775.087(2), and 775.0845, Florida Statutes (2000)....

...e [sic] found right next to the car. This occurred in Orange County, Florida. The trial court advised Hayden that unless a youthful offender sentence was imposed, his sentence would be no less than the ten-year minimum mandatory sentence required by section 775.087(2)(a)(1), up to life in prison....

...Hayden acknowledged that he understood the range of potential sentences, and the court then accepted his plea. Subsequently, Hayden was sentenced to twenty years in prison with the court imposing the ten-year minimum mandatory sentence required by section 775.087(2)(a)(1) for possession of a firearm during the commission of a felony. On appeal, Hayden argues that because the State's information failed to allege that he personally possessed a firearm during the commission of the felony, the ten-year minimum mandatory term required by section 775.087(2)(a)(i) is inapplicable to him....

...We affirm because the issue was not preserved for appeal. While Hayden correctly asserts that we have held that the State must plead and prove that the defendant had actual physical possession of the firearm during the commission of the felony before the court can impose the section 775.087(2) minimum mandatory sentence, see Demps v....

...). Instead, Hayden argues that imposing the minimum mandatory provision on him constitutes fundamental error that can be corrected on appeal even though not preserved below. We disagree. As Hayden argues, imposing the minimum mandatory provisions of section 775.087(2) constitutes a sentencing error [2] because the information failed to allege that he personally possessed a firearm....

...utive sentences. We find no abuse of discretion in the trial court's denial of Roberts' motion to withdraw his guilty plea. However, in Mondesir v. State, 814 So.2d 1172 (Fla. 3d DCA 2002), a case decided after the trial court's ruling, we held that section 775.087(2)(d) required consecutive sentences "only to another separate crime, rather than those involved in a single prosecution." *900 Id....

...FLETCHER, Judge. Dale Lee Lenoir appeals the summary denial of his rule 3.800 motion to correct an illegal sentence. We affirm. At the start of trial, the State moved, over defense objection, to amend the information to include citation to Fla. Stat. 775.087 (reclassification of offense for possession or use of a weapon)....

...Lenoir was convicted and was sentenced to 22 years with the mandatory 3-year minimum for use of the firearm. The court vacated the judgment of guilt on the charge of possession of firearm while engaged in a felony. Lenoir first argues that the lastminute amendment of the information to include section 775.087, Florida Statutes raised his offense level from a second degree *509 to a first degree felony, which prejudiced his defense....

...In Apprendi, the United States Supreme Court held that a defendant's sentence cannot be increased beyond the statutory maximum by any fact, other than a prior conviction, that was not put before a jury and proven beyond a reasonable doubt. Here, Lenoir suggests that because the jury was not instructed in the elements of § 775.087 in order to find that a weapon was indeed used, the verdict therefore falls short of "proof beyond a reasonable doubt," and the reclassification from a second to a first degree felony constitutes an illegal Apprendi enhancement....

firearm and caused great bodily harm. Under section 775.087(2)(a)(3), if the jury finds beyond a reasonable

twenty-year mandatory minimum prison sentence under section 775.087(2)(a)(2), Florida Statutes (2006). The transcript

...Although we do not agree with the trial court's reasoning for dismissal, we nevertheless affirm because Vonador's claim is not cognizable under rule 3.800(a). In 1992, Vonador was convicted of robbery with a firearm and sentenced to thirty years in prison, with three years' minimum mandatory pursuant to section 775.087, Florida Statutes (1991)....

...J. Harris, Jr., a human being, did kill the said Forrest J. Harris, Jr., by shooting him to death with a pistol, and in the course of committing said murder, carried a firearm or other deadly weapon, to-wit: a pistol, contrary to sections 782.04 and 775.087, Florida Statutes." Downs then notes that, at the close of the guilt phase, the judge gave the jury a specific instruction on the use of a firearm [1] and then explained the verdict form, which required the jury to decide if Downs was guilty...

...eys, and the trial judge before all parties agreed to deleting the firearm language. As to its merits, relief is still properly denied on this claim. The deleted language from the verdict form concerned a sentencing enhancement provision provided in section 775.087, Florida Statutes (Supp.1976), and did not constitute an essential element of first-degree murder....

...Harris, Jr., a human being, did kill the said Forrest J. Harris, Jr. by shooting him to death with a pistol, and in the course of committing said murder carried a firearm or other deadly weapon, to wit: a pistol, contrary to Section 782.05[sic] and 775.087, Florida Statutes. Carrying a weapon in the course of committing the crime was not an essential element of first-degree murder. Hence, the deletion of the sentence enhancement provisions of section 775.087 had no impact on the validity of the murder charge or conviction....

...In his motion, Robinson alleges that his sentence is illegal because the trial court enhanced his attempted first-degree murder conviction to a life felony without a jury finding that he possessed a weapon. The court in State v. Tripp, 642 So.2d 728 (Fla.1994), held that it was error to reclassify a felony pursuant to section 775.087(1), Florida Statutes (1991), without a specific jury finding on the use of a weapon....

...3d DCA 1997), for the proposition that Tripp does not apply retroactively to cases which were final at the time it was decided. This court held in White v. State, 688 So.2d 1005 (Fla. 2d DCA 1997), that a challenge to reclassification of a felony based on possession or use of a weapon or a firearm pursuant to section 775.087(1) is appropriately raised in a motion to correct illegal sentence....

three-year minimum term on Count I, as required by section 775.087(2), Florida Statutes, and to a concurrent term

...ril 28, 2003. In Case No. 02-35061, he was sentenced on the charge of principal to robbery with a firearm to 11.5 years incarceration followed by three years drug offender probation. He also received a ten year minimum mandatory sentence pursuant to section 775.087, Florida Statutes (possession of a firearm)....

...th a twenty-five year mandatory minimum is illegal. In denying the defendant's claim, the circuit court stated that the imposition of the life sentence on the second-degree felony was the result of the mandatory sentencing of the 10-20-Life statute, section 775.087(2)(a)3., Florida Statutes (2003), because the defendant discharged a firearm. However, this court disapproved of that reasoning in Collazo v. State, 966 So.2d 429 (Fla. 4th DCA 2007). We held, pursuant to section 775.087(2)(c), Florida Statutes (2004), because the statutory maximum applicable to a defendant charged with a second-degree felony of fifteen years is less than the mandatory minimum of twenty-five years, a court may impose only that mandatory minimum. 966 So.2d at 431; § 775.087(2)(c), Fla....

sentences have been illegally enhanced pursuant to section 775.087(1) from first-degree felonies to life felonies

...y. The defense moved to dismiss on statute of limitations grounds. The trial court granted the motion and the State appealed. We reversed finding that the first (original) information made reference to aggravated battery by citing to Florida Statute 775.087 (1999), and as such the new information charging the defendant with aggravated battery was properly connected to, and in the continuation of, the original timely filed prosecution....

under the sentencing enhancement provided in section 775.087(2)(a)l., Florida Statutes (2016). Both

...This appeal arises from a March 14, 2003 sentence of life in prison with a fifteen-year mandatory minimum on the first count, conspiracy to commit armed trafficking in cocaine, and a concurrent sentence of fifteen years on the second count, conspiracy to commit armed robbery. Because the enhanced penalty under section 775.087(1), Florida Statutes, should not have been applied to Blanc's sentencing, we reverse the sentence and remand this case to the trial court for re-sentencing....

...to correct sentencing error in the trial court, contesting the legality of the life sentence imposed for Count I. The trial court denied the motion. Blanc argues that the trial court erred in imposing an enhanced sentence of life imprisonment under section 775.087(1), Florida Statutes, where he was convicted of conspiracy to commit trafficking in cocaine with a firearm....

...A first degree felony is punishable by a term of imprisonment not exceeding thirty years, unless specifically provided otherwise by statute. § 775.082(3)(b), Fla. Stat. The state successfully sought to enhance the penalty from a first degree felony to a life felony under the authority of section 775.087(1), Florida Statutes, which reads in pertinent part: [W]henever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such felony the defendant...

...of loaded firearms during the commission of a conspiracy to traffick cocaine was sufficient to enhance the sentence to life." We hold that the life sentence imposed in Count I was contrary to the well-established case law, and was unauthorized under section 775.087(1), rendering it patently illegal....

...Overfelt, 457 So.2d 1385 (Fla.1984), the Florida Supreme Court addressed the issue of whether there must be a specific jury finding that an accused actually possessed a firearm before a trial *457 court can apply the enhancement and mandatory sentencing provisions of section 775.087....

...lony is a factual matter properly decided by the jury. Id. Moreover, even if an information charges the use of a firearm, a verdict form that simply recites that the defendant is guilty as charged does not support reclassification of the crime under section 775.087(1)....

...aving actual possession of a firearm, but such was not the case here. In State v. Rodriguez, 602 So.2d 1270 (Fla.1992), the Florida Supreme Court addressed, as a certified question of great public importance, whether "the enhancement provision of subsection 775.087(1), Florida Statutes (1983), extends to persons who do not actually possess the weapon but who commit an overt act in furtherance of its use by a coperpetrator?", which is almost the precise issue presented in the instant case. Id. at 1271. The supreme court answered the question in the negative, holding that when a defendant is charged with a felony involving the "use" of a weapon, his or her sentence cannot be enhanced under section 775.087(1) without evidence establishing that the defendant had personal possession of the weapon during the commission of the felony....

...at 1272 (emphasis added). Analogously, in James v. State, 868 So.2d 1242 (Fla. 4th DCA 2004), this court held that the defendant's sentence for possession of a firearm by a felon could not be enhanced under the minimum mandatory sentence provision of section 775.087, which applies to any person who actually possesses a firearm during the commission of certain offenses....

...The information specifically charged only Blanc's two co-defendants, not Blanc, with carrying, displaying, using, threatening or attempting use of a firearm and the arrest affidavit reflects that Blanc did not have a firearm. Therefore, the enhanced penalty under section 775.087(1) was not applicable to Blanc's sentencing....

sentence imposed under the “10-20-Life” law. See § 775.087, Fla, Stat. In the first claim, he asserts he

the trial court erroneously believed that section 775.087(2)(d), 'Florida Statutes (2012), required that

...napping charge, but suspended entry of sentence as to the aggravated battery charge since the kidnapping charge was enhanced by the jury's finding that the defendant committed an aggravated battery during the commission of the kidnapping pursuant to section 775.087, Florida Statutes (2003)....

...The defendant further argues that the double jeopardy clause prevents the defendant from being convicted of aggravated battery since the defendant's conviction was enhanced from a first degree felony to a life felony based on the fact that he committed an aggravated battery during the commission of the kidnapping pursuant to section 775.087, Florida Statutes (2003)....

...uld be scored as an unranked offense under section 921.0013, Florida Statutes (1993). Section 921.0013 provides that unranked offenses which are first degree felonies are ranked within offense level 7. He claims that the firearm enhancement statute, section 775.087(1)(b), makes attempted second degree murder with a firearm an unlisted crime for purposes of determining the applicable offense severity ranking....

...e crimes not provided for in any other provision of law. Since attempted second degree murder with a firearm falls within the severity ranking provision of section 777.04(4)(a), section 921.0013 is not implicated. We reject appellant's argument that section 775.087(1)(b) makes a ranked offense, an unranked offense, because of a statutory enhancement....

...on did not make the crime of trafficking in cocaine unlisted for purposes of section 921.0012. The trial court overruled his objection. The Fifth District held that while the defendant committed his crime prior to the enactments of the amendments to section 775.087 and rule 3.703(c)(2)(1995 sentencing guidelines), courts have a duty to consider subsequent legislation in arriving at a correct interpretation of a prior statute....

...of Fla., 59 So.2d 788, 790 (Fla.1952))(The court has the right and the duty, in arriving at the correct meaning of a prior statute, to consider subsequent legislation.). The court concluded that the amendment to rule 3.703(c)(2) makes it clear that the penalty enhancement statute, section 775.087, does not make a crime "unlisted" for the purposes of determining the applicable offense severity ranking....

...The defendant did not, however, fire his gun during these encounters when he pointed the gun at Deputies Brady and Davis. The defendant, who had been shot, exited the apartment a final time, complied with the officers' commands, and was arrested without further incident. Section 775.087(2)(a)2., Florida Statutes (2005), provides that [a]ny person who is convicted of a felony or an attempt to commit a felony listed in sub-subparagraphs (a)1.a.-q....

...See §§ 784.011(1) (defining crime of assault), 784.021 (defining crime of aggravated assault), 784.07(2)(c) (defining crime of aggravated assault on a law enforcement officer). The State argues that the phrase "during the course of" contained in section 775.087(2)(a)2....

...motion to correct illegal sentence. The factual basis for the plea in this case did not establish actual possession of the firearm which is necessary for the three-year mandatory minimum to apply. Dawkins v. State, 923 So.2d 520 (Fla. 2d DCA 2005); § 775.087(2)(a)1, Fla....

enhanced pursuant to the “10-20-Life” statute, section 775.087(2)(a), Florida Statutes (2002). See Rogers

first-degree felony to a life felony pursuant to section 775.087(1), Florida Statutes, because the jury allegedly

...at bodily harm and aggravated battery based upon the use of a deadly weapon. See § 784.045(1)(a), Fla. Stat. (2007). At sentencing, the trial court reclassified appellant's conviction from a second degree felony to a first degree felony pursuant to section 775.087(1)(b), Florida Statutes (2007), and sentenced him to life as a habitual offender with a thirty-year mandatory minimum as a prison releasee reoffender. We reverse for resentencing. Aggravated battery is a second-degree felony which is committed by (1) causing great bodily harm or (2) using a deadly weapon. § 784.045. Section 775.087(1)(b) requires the reclassification of certain felonies, including aggravated battery, to the next higher degree if a firearm is used during the commission of the felony, "except a felony in which the use of a weapon or firearm is an...

...aid to Coleman, "Didn't I tell you I was going to kill her?" The State formally charged Clowers with first-degree murder, accomplished by discharge of a firearm resulting in "death or great bodily harm," in contravention of sections 782.04(1)(a) and 775.087(1) and (2), Florida Statutes....

...The trial court overruled defense counsel's objection to the foregoing remarks. The jury found Clowers guilty as charged. The court sentenced Clowers to life in prison without parole, and, according to the written judgment and sentence, to a minimum mandatory term of life in prison pursuant to section 775.087, Florida Statutes. Appellant moved to correct the sentence, see Florida Rule Criminal Procedure 3.800(b), arguing the imposition of a minimum mandatory term of life is not authorized by section 775.087(2)(a)3....

...Given the standard of review, we do not find this to be anything other than a logical analysis of the evidence in light of the applicable law. Legality of a sentence raises a question of law, subject to de novo review. See Grosso v. State, 2 So.3d 362, 364 (Fla. 4th DCA 2008). Clowers denies the trial court's authority under section 775.087(2)(a)3., Florida Statutes, to impose a minimum mandatory term of life in prison, even upon a jury finding the defendant discharged a firearm and thereby caused death or great bodily harm. Section 775.087(2)(a), the "10-20-life" law, is an enhancement provision, under which a criminal sentence may be heightened if the perpetrator has carried or used a weapon or firearm in the commission of a felony. See § 27.366(1), Fla. Stat. (providing, "[i]t is the intent of the Legislature that convicted criminal offenders who meet the criteria in [sections] 775.087(2) and (3) be sentenced to the minimum mandatory prison terms provided herein"). Section 775.087(2)(a)3....

...term of life in prison. See § 775.082(1), Fla. Stat. (providing that person convicted of capital felony "shall be punished by life imprisonment and shall be ineligible for parole"). Although one might question why the State charged appellant under section 775.087, we can certainly conceive that the State wished to preserve the right to seek a 10-20-life sentence enhancement in the event of conviction of a lesser-included offense, such as manslaughter. Whatever the reason, any citation to section 775.087(2)(a)3....

...Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for Appellee. PER CURIAM. The state challenges the sentence imposed on appellant for the crime of possession of a firearm by a felon. The state correctly asserts that the trial judge erred in sentencing appellant to a term of probation, contrary to section 775.087, Florida Statutes (1999)....

...m, discharged it, and as a result of the discharge, the victim died. The jury was also instructed on the underlying felony of aggravated assault. In imposing sentence, the court stated that it was imposing the thirty year sentence as mandatory under section 775.087(2), Florida Statutes, (10-20-life law) for a first-degree felony....

...perpetrate, any felony other than . . . is murder in the third degree and constitutes a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. § 782.04(4), Fla. Stat. (2005) (emphasis added). Florida Statutes section 775.087, Possession or use of weapon; aggravated battery; felony reclassification; minimum sentence, provides, in part: (1) Unless otherwise provided by law, whenever a person is charged with a felony, except a felony in which the use of a we...

...and, as a result of the discharge, death or great bodily harm was inflicted upon any person, the convicted person shall be sentenced to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison. § 775.087(1), (2)(a)1., 3., Fla....

...ravated assault under the third-degree murder charge, which required the use of a deadly weapon. Consequently, under Osorio and Rodriguez, the use of a firearm was an essential element of the offense, and the trial court erred in reclassifying under section 775.087(1)....

...4th DCA 2005), and deem it inapposite. Notwithstanding that the trial court in this case imposed the thirty year sentence based on the erroneous reclassification of the conviction to a first-degree felony, we recognize that this sentence would have also been appropriate under section 775.087(2)(a)3., as a permissible discretionary sentence between twenty-five years to life. Therefore, on remand, the trial court is not restricted from re-imposing a thirty year sentence. We remand for the trial court to properly classify the conviction as a second-degree felony and re-sentence based on section 775.087(2)(a)3....

October 2017. In determining which version of section 775.087 to apply for sentencing, the trial court looked

kidnapping is reclassified as a life felony. See § 775.087(1)(a), Fla. Stat. (1993). In response to

reference to a twenty-year minimum mandatory and section 775.087(2)(a)2., Florida Statutes (2008), is erroneous

...d to include a three-year minimum mandatory for use of a firearm. Section 921.0014(1), Florida Statutes (1995) provides, in pertinent part, "If the offender is convicted of committing or attempting to commit any felony other than those enumerated in s. 775.087(2) while having in his possession: a firearm as defined in s. 790.001(6), an additional 18 sentence points are assessed." Among the enumerated felonies in section 775.087(2)(a), is the offense of "murder." In the instant case, the appellant was convicted of second-degree murder....

...§ 775.082(9)(a), Fla. Stat. (1999). Furthermore, the subsection of the 10-20-Life statute used by the sentencing court to apply a minimum mandatory to the appellant's sentence does not apply to convictions for possession of a firearm by a convicted felon. § 775.087(2)(a)(3), Fla....

...Because of Johnson's designation as a prison releasee reoffender, the trial court must impose the maximum penalty of fifteen years. See § 775.082(9)(a)3.c., Fla. Stat. (2008). Additionally, the information in this case alleged that Johnson actually possessed the firearm during commission of the crime for purposes of section 775.087(2)(a), Florida Statutes (2008), which requires imposition of a ten-year minimum mandatory sentence....

...d against him. That judgment read as follows: COUNT CRIME OFFENSE STATUTE DEGREE NUMBERS 1 KIDNAPPING WITH A FIREARM 787.01 & 775.087 LIFE 2 ROBBERY WITHOUT A FIREARM 812.13 2F 3 BURGLARY WITH A FIREARM 810.02 & 775.087 1F 5 SEXUAL BATTERY WITH A DEADLY 794.011 (3) LIFE WEAPON 775.087 Jackson was sentenced on count I for kidnapping with a firearm to a “term of Natural Life”; on count II for robbery without a firearm to a term of fifteen years, to run concurrent with the sentence imposed on count I; on coun...

...ckson’s fourth motion for postconviction relief, wherein he raises the same arguments he raised in 1985 and 1995, respectively, claiming that “1) Jackson’s sentences were imposed pursuant to a designation that he fell under Florida Statutes section 775.087 for possessing or using a weapon, despite the fact that the trial record conclusively 3 demonstrates that Jackson never personally possessed or used a weapon during the commission of these offenses; and, 2) Jackson’s sentences were both enhanced pursuant to Florida Statutes section 775.087 and run consecutively, despite the fact that all counts composed a single criminal episode.” We, like the court below, reject these arguments. Jackson argues that his sentences for armed burglary and armed sexual battery are illegal and that he is therefore entitled to relief pursuant to Florida Rule of Criminal Procedure 3.800(a). Jackson’s primary argument is that because the criminal offenses for which he was convicted were improperly reclassified (or enhanced) under section 775.087, which requires actual possession of a weapon by that defendant, and because the record demonstrates it was Jackson’s co-defendant, not Jackson himself, who possessed a weapon, he is entitled to a new sentencing hearing. See Freeny v. State, 621 So. 2d 505, 506 (Fla. 5th DCA 1993) (confirming that to warrant imposition of enhancement under section 775.087 “the state must prove that the defendant had actual physical possession of the weapon”). Because Jackson has previously raised the same claims he is raising herein, and these claims have already been rejected below and o...

...(1983) (providing that a person “who commits sexual battery upon a person over the age 1See Harris v. State, 766 So. 2d 403, 404 (Fla. 2d DCA 2000) (holding that the defendant’s sentence for armed burglary in violation of section 810.02(2)(b) was improperly enhanced pursuant to section 775.087 because the “use of a weapon or a firearm is an essential element of armed burglary”); § 775.087(1), Fla....

...(1983) (providing that a person convicted of a life felony may be punished by a term of imprisonment for life). Because the armed burglary and armed sexual battery charges were not subject to reclassification, and the life sentences imposed for these criminal acts without reclassification or enhancement under section 775.087 are lawful, Jackson has failed to demonstrate that his sentences for these offenses are illegal or that he is entitled to a new sentencing hearing based on manifest injustice. While Jackson’s 1984 judgment incorrectly indic...

...tes that this is a life felony. The sentences imposed for armed burglary and armed sexual battery as corrected are, therefore, legal sentences for the criminal acts for which Jackson was convicted without any enhancement or reclassification under section 775.087.2 2 Jackson maintains remand for resentencing is required notwithstanding the fact that none of the sentences imposed were beyond the statutory maximum and thus “illegal.” We disagree....

Trotter v. State, 825 So.2d 362, 365 (Fla.2002). Section 775.087 of the Florida Statutes requires trial courts

...Kelly counters arguing that 3 the sentence is legal under Taylor v. State, 710 So. 2d 636 (Fla. 3d DCA 1998), and its progeny. While we agree with neither position, we nonetheless find that the sentence imposed is illegal and must therefore be reversed. Section 775.087 of the Florida Statutes clearly states that a conviction for robbery while possessing a firearm carries a ten-year minimum prison sentence, a sentence which cannot be suspended: (2)(a)1....

.... . Notwithstanding s. 948.01, adjudication of guilt or imposition of sentence shall not be suspended, deferred, or withheld, and the defendant is not eligible for statutory gain-time . . . prior to serving the minimum sentence. § 775.087(2)(a) 1.c, (b), Fla....

...commission of a crime and not used in furtherance of the crime, used in order to 4 commit the crime, or used in preparation to commit the crime.”); State v. Vanderhoff, 14 So. 3d 1185, 1189 (Fla. 5th DCA 2009) (confirming that section 775.087(2) of the Florida Statutes removed most sentencing discretion from the judicial branch, according only the State Attorney with the discretion to waive a minimum mandatory sentence); Johnson v. State, 53 So. 3d 360, 362 (Fla. 5th DCA 2011) (confirming that “the imposition of a mandatory minimum sentence under section 775.087(2) is a non-discretionary duty of a trial court where the record reflects that the defendant qualifies for mandatory minimum sentencing”). The record in this case is that the State Attorney did not agree to waive the minimum mandatory sentences that section 775.087(2) required be imposed following Kelly’s acknowledgement of guilt to commission of four separate robberies while possessing a firearm. The court below was, therefore, without authority either to impose any sentence without also imposing the mandated minimum mandatory sentence required by section 775.087 or to suspend those sentences.2 This court’s decision in Taylor and the decisions in Glenn v....

...identifying the offense as a life felony, because the offense was a first degree felony punishable by life. § 812.135(2)(a), Fla. Stat. (2007). It could not properly have been reclassified to a life felony because the use of a firearm was an essential element of the offense. § 775.087(1), Fla....

...he commission of the murder offense. Section 921.0014(1), Florida Statutes (1995), and Florida Rule of Criminal Procedure 3.702(d)(12) prohibit the addition of points for possession of a firearm where the conviction is for an enumerated felony under section 775.087(2), Florida Statutes (1995). See Kelly v. State, 796 So.2d 578 (Fla. 2d DCA 2001). Murder is an enumerated felony under section 775.087(2)(a)....

the minimum-mandatory sentence provision of section 775,087(2)(a)2., Florida Statutes (2010). The offense

minimum on the armed burglary count pursuant to section 775.087(2), Florida Statutes (2016).

3-year minimum mandatory imposed pursuant to section 775.087(2), Florida Statutes (1990), for possessing

...Brown was convicted of attempted voluntary manslaughter, aggravated battery, and aggravated assault. The sole issue he raises on appeal is the propriety of the mandatory minimum sentence imposed on the attempted voluntary manslaughter offense, pursuant to section 775.087(2), Florida Statutes (2007) (the "10-20-Life" statute). The State properly concedes error. Murray v. State, 491 So.2d 1120, 1123 (Fla. 1986); Chambers v. State, 975 So.2d 444, 454 (Fla. 2d DCA 2007). Under section 775.087(2), attempted voluntary manslaughter is not an enumerated offense subjecting an offender to its mandatory minimum provisions....

mandatory term imposed for count I pursuant to section 775.087(2), Florida Statutes, for actually possessing

...victim in the head with a .38 caliber handgun. The information alleged that during the commission of the offense Burton "did carry, display, use, threaten or attempt to use a weapon or firearm, to wit: .38 CALIBER HANDGUN, contrary to Sections . . . 775.087(1), Florida Statutes." Section 775.087(1), Florida Statutes (1998), mandates a one-level increase in a felony's severity ranking for use of a firearm or other weapon during commission of the felony....

...e Burton "carried, displayed, used, threatened to use, or attempted to use a firearm." At the time, attempted second degree murder was classified as a second degree felony. [1] See § 782.04(2), Fla. Stat. (1998); § 777.04, Fla. Stat. (1998). Under section 775.087(1), the crime was reclassified to a first degree felony based upon the jury's finding that Burton used a firearm while committing the crime....

mandatory was presumably imposed pursuant to section 775.087(2), Florida Statutes (1991), for possession

should analogize section 790.22(9), with section 775.087(1), Florida Statutes (1999). Moreover, we

...[1] Tucker argues that the trial court erred when it reclassified the two counts of attempted first degree murder with a firearm, from first degree felonies to life felonies, and in imposing three-year mandatory sentences for those convictions pursuant to sections 775.087(1) and (2), Florida Statutes (Supp.1996), effective July 1, 1996....

...Tripp, 642 So.2d 728 (Fla.1994), which requires that the jury must find on the verdict form that the defendant either carried, displayed, used, etc., a weapon or firearm, in order for the sentencing judge to reclassify the felony conviction pursuant to section 775.087(1). The same rule is applicable to the imposition of a mandatory sentence pursuant to section 775.087(2)....

...following question to the Florida Supreme Court, as constituting an issue of great public importance: IN A CASE IN WHICH THERE IS ONLY ONE DEFENDANT AND ASSAILANT, WHO HAS BEEN CONVICTED OF CRIMES FOR WHICH THE PENALTIES MAY BE ENHANCED PURSUANT TO SECTION 775.087(1) AND FOR WHICH MANDATORY SENTENCES MAY BE IMPOSED PURSUANT TO SECTION 755.087(2), IF THE DEFENDANT USED A WEAPON OR FIREARM IS IT SUFFICIENT TO SUSTAIN THOSE ENHANCED PENALTIES IF THE JURY FINDS THE DEFENDANT GUILTY OF HAVING COMMIT...

...DAUKSCH, J., dissents with opinion in which THOMPSON, J., concurs. DAUKSCH, Judge, dissenting. I respectfully dissent. In State v. Tripp, 642 So.2d 728 (Fla.1994), the supreme court answered the following question in the negative: MAY A TRIAL COURT RECLASSIFY A FELONY CONVICTION PURSUANT TO SECTION 775.087(1) ABSENT A SPECIFIC FINDING ON THE JURY'S VERDICT FORM THAT A DEFENDANT CARRIED, DISPLAYED, USED, ETC....

...erved. *401 It was preserved when defense counsel requested the verdict form to be done properly. I would vacate the sentence and remand for a proper one. THOMPSON, J., concurs. NOTES [1] Fla. R.App. P. 9.030(a)(2)(B)(i). [2] Those sections provide: 775.087....

...Little, 111 So. 3d at 222. Thus, section 776.013(3) does not apply in this case. III. Reclassification of the Aggravated Battery Offense The trial court reclassified the aggravated battery offense to a first-degree felony pursuant to section 775.087(1)(b), Florida Statutes (2009), which provides for reclassification "whenever a person is charged with a felony, except a felony in which the use of a weapon or firearm is an essential element, and during the commission of such fel...

...The defendant is guilty of the lesser included offense of Battery. ___D. The defendant is not guilty. (Emphasis added.) The Florida Supreme Court has determined that the crime of aggravated battery causing great bodily harm is subject to enhancement under section 775.087(1) while the crime of aggravated battery with a deadly weapon is not....

...While this appears to be a simple distinction, it is often muddled by instructing the jury on both methods of committing aggravated battery together. See, e.g., Webb v. State, 997 So. 2d 469, 471 (Fla. 2d DCA 2008) (and cases cited therein). In order to support the enhancement under section 775.087(1), the jury must be given the option of finding the defendant guilty of aggravated battery with great bodily harm without also finding the defendant guilty of aggravated battery with a deadly weapon. Id. Thus, it is reversible error to reclassify aggravated battery under section 775.087(1) when the jury is instructed that it may return a verdict for aggravated battery by either great bodily harm or the use of a deadly weapon and the verdict form does not reflect which theory is the basis for the conviction....

...In his initial brief, appellant argues that he should not have received a habitual sentence for count II, burglary with an assault or battery, as it is a first degree felony punishable by life, see § 810.02(2)(a), Fla. Stat. (1991), which the trial court was obliged to enhance to a life felony pursuant to section 775.087(1)(a) (use of a weapon)....

resentencing. STEVENSON and LEVINE, JJ., concur. . See § 775.087(2)(a)1.c„ Fla. Stat. (2008) ("Any person who is

...e word "firearm" anywhere on its face. Accordingly, Mr. Harvey's judgment reflected a conviction for second-degree murder and classified the offense as a first-degree felony. Mr. Harvey was sentenced to a life term as a habitual offender. "[S]ection 775.087(1)(a), Florida Statutes (1993), requires that the trial court reclassify a first-degree felony to a life felony where the use of a weapon or firearm is an *519 essential element of the offense and a weapon or firearm was used during the offense." Collins v....

...crime was committed with a firearm, the trial court could not enhance the degree of the crime. We affirm. SALCINES and SILBERMAN, JJ., Concur. NOTES [1] Whether a minimum mandatory is imposed based on the physical possession of a firearm pursuant to section 775.087(2), or whether the level of offense is enhanced based on the possession/use of a firearm pursuant to section 775.087(1), there exists an identical requirement for the jury to specifically find that the defendant possessed/used a firearm....

ten-year minimum term of imprisonment under section 775.087(2)(a)(l), Florida Statutes (2005), the 10/20/LIFE

first-degree felony for use of a weapon pursuant to section 775.087(l)(b), Florida Statutes (2009), and sentenced

...h violence. [1] The issue before this court is whether a mandatory minimum sentence under the Prison Releasee Reoffender (PRR) statute, section 775.082(9), Florida Statutes (2000), must be imposed concurrently with a mandatory minimum sentence under section 775.087, Florida Statutes (2000) (the 10-20-LIFE statute), when the mandatory minimum sentences are based on separate and distinct offenses....

...based upon his status in one charge and his conduct in the other. We further note that both the 10-20-LIFE statute and the PRR statute have a common legislative intent to "punish to the fullest extent of the law." McDonald, 912 So.2d at 76 ( quoting § 775.087(2)(d), Fla....

(count two). Only count one was charged under section 775.087, Florida Statutes, colloquially known as the