State v. Whitehead, 472 So. 2d 730 (Fla. 1985). · Go Syfert
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State v. Whitehead, 472 So. 2d 730 (Fla. 1985). Cases Citing This Book View Copy Cite
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cited 2× by 2 distinct cases · …ursuant to section 775.087(1), a first-degree felony shall be reclassified to a life felony if a weapon or firearm is used ... ✓
41 citation events (23 in the last 25 years) across 2 distinct courts.
Strongest positive: Sheppard v. State (fladistctapp, 2019-05-22)
Treatment trajectory · 1985 → 2026 · click a year to view as-of
1985 2005 2026
Top citers, strongest first. 18 distinct citers. How cited ↗
discussed Cited as authority (quoted) Sheppard v. State
Fla. Dist. Ct. App. · 2019 · signal: see · quote attribution · 1 verbatim quote · confidence high
ursuant to section 775.087(1), a first-degree felony shall be reclassified to a life felony if a weapon or firearm is used ...
discussed Cited as authority (quoted) Sheppard v. State
Fla. Dist. Ct. App. · 2019 · signal: see · quote attribution · 1 verbatim quote · confidence high
ursuant to section 775.087(1), a first-degree felony shall be reclassified to a life felony if a weapon or firearm is used ...
cited Cited as authority (rule) Bannister v. State
Fla. Dist. Ct. App. · 2003 · confidence medium
State v. Whitehead, 472 So.2d 730, 731 (Fla.1985).
cited Cited as authority (rule) Mills v. State
Fla. · 2002 · confidence medium
The Court's decision in State v. Whitehead, 472 So.2d 730, 732 (Fla.1985), is instructive in this regard.
cited Cited as authority (rule) Spann v. State
Fla. Dist. Ct. App. · 2000 · confidence medium
In State v. Whitehead, 472 So.2d 730, 732 (Fla.1985), the defendant was convicted of second degree murder with a firearm.
cited Cited as authority (rule) Martin v. State
Fla. Dist. Ct. App. · 1990 · confidence medium
State v. Whitehead, 472 So.2d 730, 732 (Fla.1985).
discussed Cited "see" Fleming v. State
Fla. Dist. Ct. App. · 2019 · signal: see · confidence high
See State v. Whitehead , 472 So. 2d 730 (Fla. 1985) ; Robinson v. State , 37 So. 3d 921 (Fla. 2d DCA 2010) ; Cook v. State , 816 So. 2d 773 (Fla. 2d DCA 2002) ; Diaz v. Jones , 215 So. 3d 121 (Fla. 1st DCA 2017) ; Coke v. State , 955 So. 2d 1216 (Fla. 4th DCA 2007) ; Johnson v. State , 917 So. 2d 1011 (Fla. 4th DCA 2006) ; LaMar v. State , 823 So. 2d 231 (Fla. 4th DCA 2002).
discussed Cited "see" Fleming v. State
Fla. Dist. Ct. App. · 2019 · signal: see · confidence high
See State v. Whitehead , 472 So. 2d 730 (Fla. 1985) ; Robinson v. State , 37 So. 3d 921 (Fla. 2d DCA 2010) ; Cook v. State , 816 So. 2d 773 (Fla. 2d DCA 2002) ; Diaz v. Jones , 215 So. 3d 121 (Fla. 1st DCA 2017) ; Coke v. State , 955 So. 2d 1216 (Fla. 4th DCA 2007) ; Johnson v. State , 917 So. 2d 1011 (Fla. 4th DCA 2006) ; LaMar v. State , 823 So. 2d 231 (Fla. 4th DCA 2002).
discussed Cited "see" THOMAS P. FLEMING v. STATE OF FLORIDA
Fla. Dist. Ct. App. · 2019 · signal: see · confidence high
See State v. Whitehead, 472 So. 2d 730 (Fla. 1985); Robinson v. State, 37 So. 3d 921 (Fla. 2d DCA 2010); Cook v. State, 816 So. 2d 773 (Fla. 2d DCA 2002); Diaz v. Jones, 215 So. 3d 121 (Fla. 1st DCA 2017); Coke v. State, 955 So. 2d 1216 (Fla. 4th DCA 2007); Johnson v. State, 917 So. 2d 1011 (Fla. 4th DCA 2006); LaMar v. State, 823 So. 2d 231 (Fla. 4th DCA 2002).
cited Cited "see" State v. Moore
Fla. Dist. Ct. App. · 2009 · signal: see · confidence high
See State v. Whitehead, 472 So.2d 730 (Fla.1985).
cited Cited "see" Roberts v. State
Fla. Dist. Ct. App. · 2006 · signal: see · confidence high
See State v. Whitehead, 472 So.2d 730 (Fla. 1985).
cited Cited "see" Rasley v. State
Fla. Dist. Ct. App. · 2004 · signal: see · confidence high
See Whitehead, 472 So.2d at 732 .
cited Cited "see" Darst v. State
Fla. Dist. Ct. App. · 2002 · signal: see · confidence high
See State v. Whitehead, 472 So.2d 730 (Fla.1985); see also Spann, 772 So.2d at 39 (affirming sentence as a Prison Release Reoffender and reclassification under section 784.07).
discussed Cited "see" Maxwell v. State
Fla. Dist. Ct. App. · 2001 · signal: see · confidence high
See State v. Whitehead, 472 So.2d 730 , 732 (Fla.1985) (reclassification of offense for use of firearm plus three year mandatory minimum for use of firearm does not violate double jeopardy); Spann v. State, 772 So.2d 38 (Fla. 4th DCA 2000) (PRR sentence does not violate double jeopardy); Perez v. State, 772 So.2d 577 (Fla. 1st DCA 2000) (imposing habitual violent felony offender sentence following reclassification of attempted robbery offense for use of firearm does not violate double jeopardy).
cited Cited "see" Clarington v. State
Fla. Dist. Ct. App. · 1994 · signal: see · confidence high
See State v. Whitehead, 472 So.2d 730 (Fla. 1985); § 775.087(1), Fla. Stat. (1989).
cited Cited "see" State v. Hollinger
Fla. · 1991 · signal: see · confidence high
See State v. Whitehead, 472 So.2d 730 (Fla.1985).
discussed Cited "see, e.g." Walsh v. State
Fla. Dist. Ct. App. · 2016 · signal: see, e.g. · confidence medium
See, e.g., State v. Whitehead, 472 So.2d 730, 732 (Fla.1985) (upholding against a double jeopardy challenge a felony sentence reclassified as one category higher under section 775,087(1) and enhanced pursuant to section 775.087(2)). 5 .
discussed Cited "see, e.g." Kio v. State
Fla. Dist. Ct. App. · 1993 · signal: see, e.g. · confidence low
See, e.g., State v. Whitehead, 472 So.2d 730 (Fla. 1985); Strickland v. State, 437 So.2d 150 (Fla. 1983); Tripp v. State, 610 So.2d 1311 (Fla. 1st DCA *747 1992); Lentz v. State, 567 So.2d 997 (Fla. 1st DCA 1990); Burgess v. State, 524 So.2d 1132 (Fla. 1st DCA 1988); Parker v. State, 593 So.2d 1186 (Fla. 2d DCA 1992); Williams v. State, 407 So.2d 223 (Fla. 2d DCA 1981).
Retrieving the full opinion text from the archive…
STATE of Florida, Petitioner
v.
Levi WHITEHEAD, Respondent.
65492.
Supreme Court of Florida.
Jul 3, 1985.
472 So. 2d 730
Ehrlich.
Cited by 32 opinions  |  Published
1 passages pin-cited by 2 cases
Pinpoint authority: #44,620 of 633,719
Citer courts: District Court of Appeal of Fl… (2)

[*731] Jim Smith, Atty. Gen. and Michael J. Neimand, Asst. Atty. Gen., Miami, for petitioner.

No appearance for respondent.

EHRLICH, Justice.

This case is before us to review a decision of a district court of appeal, Whitehead v. State, 450 So.2d 545 (Fla. 3d DCA 1984), which expressly conflicts with Strickland v. State, 437 So.2d 150 (Fla. 1983). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const.

In the case at hand, defendant was convicted of second-degree murder with a firearm. He was sentenced to fifteen years subject to a three-year mandatory minimum term pursuant to section 775.087(2), Florida Statutes (1981).[1] This judgment was affirmed. The state contended by cross appeal that since a firearm was involved, the second-degree murder conviction is reclassified by section 775.087(1)(a), Florida Statutes, (1981)[2] from a first-degree felony pursuant to section 782.04(2), Florida Statutes (1981), to a life felony, punishable by no less than thirty years. Section 775.082(3)(a), Fla. Stat. (1981). The district court held that this would constitute a double enhancement and is not statutorily permissible. We disagree.

In Strickland, the defendant was found guilty of attempted first-degree murder with a firearm. He was sentenced to life imprisonment, with a three-year minimum mandatory sentence. We held that pursuant to section 775.087(1), a first-degree felony shall be reclassified to a life felony if a[*732] weapon or firearm is used as long as the weapon or firearm is not an essential element of the charged crime. Because use of a weapon or firearm is not an essential element of the crime of attempted first-degree murder, defendant's sentence was properly reclassified to a life felony. We thus upheld the sentencing enhancement, even when the three-year minimum mandatory had been imposed.

More recently in Miller v. State, 460 So.2d 373 (Fla. 1984), this Court upheld the reclassification provision of section 775.087(1), where the defendant was not convicted of the offense charged in the information or indictment but was convicted of a lesser included offense under circumstances where the minimum mandatory sentence of three years was also imposed.

There is nothing in the statute to indicate that the legislature intended that subsections (1) and (2) be mutually exclusive. Section 775.087(1) provides that when a person commits a felony with a firearm (except those in which use of a weapon or firearm is an essential element), his sentence is to be reclassified one category higher. Section 775.087(2) provides that people who commit certain enumerated crimes with a firearm are required to serve three years before becoming eligible for parole.

Different purposes are being served by the two subsections. As Judge Pearson pointed out in his dissent, the purpose of subsection (1) is to increase the severity of the punishment when a defendant chooses to use a firearm in committing the felony. The purpose of subsection (2) is to ensure that the defendant will serve at least three years of his sentence, whatever its length, before being considered for parole if he uses a firearm in committing one of the listed felonies. See Perez v. State, 431 So.2d 274 (Fla. 5th DCA 1983); Aikens v. State, 423 So.2d 593 (Fla. 1st DCA 1982); Blanton v. State, 388 So.2d 1271 (Fla. 4th DCA 1980).

Another indication that the statutes are not mutually exclusive is shown by the fact that subsections (1) and (2) are not necessarily dealing with the same crimes. Subsection (1) covers all felonies while subsection (2) lists specific crimes to which the three year minimum mandatory applies.

This would indicate that the subsections were drafted to serve separate functions in deterring and punishing both the presence of firearms during the commission of felonies in general and the use of firearms at certain felonies.

Brown v. State, 460 So.2d 546, 547 (Fla. 1st DCA 1984).

Determination of punishment for crimes is a legislative matter. Because the legislature has provided both these subsections, both are to be followed. Absent an indication from the legislature that these subsections are an either/or proposition, both subsections will be followed.

Accordingly, we approve the district court of appeal's decision affirming Whitehead's conviction for second-degree murder, but we quash its holding that subsections 775.087(1) and (2) are mutually exclusive. The case is remanded to the circuit court for further proceedings consistent with this opinion.

It is so ordered.

BOYD, C.J., and ADKINS, OVERTON, ALDERMAN, McDONALD and SHAW, JJ., concur.

1 In pertinent part the statute provides that:

(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 aircraft piracy, or any attempt to commit the aforementioned crimes; ...

and who had in his possession a "firearm" as defined in subsection 790.001(6), or "destructive device," as defined in subsection 790.001(4), shall be sentenced to a minimum term of imprisonment of 3 calendar years. Notwithstanding the provisions of section 948.01, adjudication of guilt or imposition of sentence shall not be suspended, deferred, or withheld, nor shall the defendant be eligible for parole, prior to serving such minimum sentence.

2 (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 carries, displays, uses, threatens, or attempts to use any weapon or firearm, or during the commission of such felony the defendant commits an aggravated battery, 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.

(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.