Opinion
No. 93135.
October 29, 1998.
Application for Review of the Decision of the District Court of Appeal — Certified Direct Conflict Fifth District — No. 97-3557 (Orange County).
James B. Gibson, Public Defender, and Nancy Ryan, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, for Petitioner.
Robert A. Butterworth, Attorney General, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Respondent.
We have for review the decision in Davis v. State, 710 So.2d 764 (Fla. 5th DCA 1998), which certified conflict with the opinion in Galloway v. State, 680 So.2d 616 (Fla. 4th DCA 1996), concerning the issue of whether additional sentencing points for carrying or possessing a firearm during the commission of a crime may be added to a defendant's sentencing score where the defendant is convicted of possession of a firearm by a convicted felon. We have jurisdiction. Art. V, § 3(b)( 4), Fla. Const.
We recently resolved this conflict in White v. State, 714 So.2d 440 (Fla. 1998), wherein we held that it is error for a trial court to assess additional sentencing points for carrying or possessing a firearm where the sole underlying crime is carrying a concealed firearm or possession of a firearm by a convicted felon. In other words, additional sentencing points for carrying or possessing a firearm during the commission of a crime may not be assessed against a defendant's sentencing score where the carrying or possessing of a firearm is the essential element of the underlying offense. Id. at 443-44. In so holding, we approved the opinion in Galloway.
Therefore, in accordance with our decision in White, we quash the decision below.
It is so ordered.
HARDING, C.J., and OVERTON, SHAW, KOGAN, ANSTEAD and PARIENTE, JJ., concur.
WELLS, J., dissents.