Cleveland v. State

Full title: Tracy N. CLEVELAND, Appellant, v. STATE of Florida, Appellee

Court: District Court of Appeal of Florida, Fifth District

Date published: Sep 18, 1998

717 So. 2d 188 (Fla. Dist. Ct. App. 1998)

Opinion

No. 97-3449.

Opinion filed September 18, 1998. JULY TERM 1998.

Appeal from the Circuit Court for Orange County, Charles N. Prather, Judge.

James B. Gibson, Public Defender, and Kenneth Witts, Assistant Public Defender, Daytona Beach, for Appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.

SHARP, W., Judge.

Cleveland appeals from his judgment and sentences for carrying a concealed firearm,¹ possession of a firearm by a minor,² and resisting an officer without violence.³ The sole issue on appeal is whether the trial court erred in adding to Cleveland's guidelines scoresheet 25 points for possession of a semi-automatic firearm, pursuant to Florida Rule of Criminal Procedure 3.703(d)(19). We affirm.

1 § 790.01(2), Fla. Stat.

2 § 790.22(3), Fla. Stat.

3 § 843.02, Fla. Stat.

Rule 3.703(d)(10) provides that 25 points should be added to a defendant's guidelines scoresheet if the defendant is convicted of committing or attempting to commit any felony other than certain enumerated offenses in section 775.087(3) (none of which are involved in this case), while having in his or her possession a semi-automatic firearm. The Florida Supreme Court recently held that additional points for possessing a firearm while committing a felony or attempting to commit a felony should not be added where the sole underlying crime has as an essential element the carrying or possession of a firearm. Vela v. State, 1998 WL 394182 (Fla. July 16, 1998); Coleman v. State, 23 Fla. L. Weekly S313 (Fla. June 12, 1998); White v. State, 23 Fla. L. Weekly S311 (Fla. June 12, 1998).

In this case, Cleveland was convicted of three offenses. One, resisting an officer without violence, is not a crime which has as an essential element the possession of a firearm. Thus, points assessed pursuant to rule 3.703(d)(10) could be added, if Cleveland possessed the weapon during the offense of resisting the officer.

Based on police reports in the record and the state's summary of the factual basis for the plea at the sentencing hearing, it appears that Cleveland had a weapon concealed in his clothing. When the police officer asked if he would agree to be patted down, he first agreed and then ran from the officer. During the chase, Cleveland threw down a loaded handgun (a .22 caliber semi-automatic firearm), which police officers recovered. Cleveland admitted to the arresting officer that he had the firearm in his right front pocket while being chased. Accordingly, the addition of the 25 points was proper. See Vela; White.

AFFIRMED.

COBB and GOSHORN, JJ., concur.