Summary
In Harper v. State, 537 So.2d 1131 (Fla. 1st DCA 1989), this court held that convictions for first-degree murder and use of a firearm during the commission of a felony were permissible since the first-degree murder statute neither requires use of a firearm as an element, nor can it be enhanced under section 775.087, Florida Statutes (1987).
Summary of this case from Brown v. StateOpinion
No. 88-7.
February 7, 1989.
Appeal from the Circuit Court for Dixie County, Wallace Jopling, J.
Michael E. Allen, Public Defender, and P. Douglas Brinkmeyer, Asst. Public Defender, Tallahassee, for appellant.
Robert A. Butterworth, Atty. Gen., and Bradley R. Bischoff, Asst. Atty. Gen., Tallahassee, for appellee.
William Harper appeals his convictions and sentences for first-degree murder, attempted second degree murder, possession of cocaine and use of a firearm during the commission of a felony. We affirm the trial court's denial of Harper's motions for mistrial. We also affirm his convictions for both first-degree murder and use of a firearm during the commission of a felony. We find clear legislative intent in the statutes that multiple punishments for both crimes are permissible. The first-degree murder statute neither requires use of a firearm as an element, nor can it be enhanced under § 775.087, Florida Statutes (1987). Finally, the record is unclear as to whether Harper should be credited for time served. Therefore, we remand solely for that determination.
Accordingly, we AFFIRM in part and REVERSE and REMAND in part.
SHIVERS and ZEHMER, JJ., concur.