State v. Overfelt, 457 So. 2d 1385 (Fla. 1984). · Go Syfert
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State v. Overfelt, 457 So. 2d 1385 (Fla. 1984). Cases Citing This Book View Copy Cite
“the question of whether an accused actually possessed a firearm while committing a felony is a factual matter properly decided by the jury.”
202 citation events (70 in the last 25 years) across 6 distinct courts.
Strongest positive: Kishon Larhame Birch v. State of Florida (fladistctapp, 2018-05-25)
Treatment trajectory · 1984 → 2026 · click a year to view as-of
1984 2005 2026
Top citers, strongest first. 50 distinct citers.
discussed Cited as authority (verbatim quote) Kishon Larhame Birch v. State of Florida
Fla. Dist. Ct. App. · 2018 · quote attribution · 1 verbatim quote · confidence high
the question of whether an accused actually possessed a firearm while committing a felony is a factual matter properly decided by the jury.
discussed Cited as authority (rule) State v. Robert F. Woodall, III
Fla. Dist. Ct. App. · 2017 · confidence medium
The mandatory minimum sentence must be supported by a “clear jury finding” that Woodall discharged a firearm during the offense, which “can be demonstrated either by (1) a specific question or special verdict form (which is 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.” State v. Iseley, 944 So,2d 227, 230 (Fla. 2006) (citing Tucker v. State, 726 So.2d 768, 771-72 (Fla. 1999); State v. Overfelt, 457 So.2d 1385, 1387 (Fla. 1984)).
discussed Cited as authority (rule) Tyron Terrance Roberts v. State
Fla. Dist. Ct. App. · 2014 · confidence medium
“This requisite ‘clear jury finding* can be demonstrated either by (1) a specific question or special verdict form (which is 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.” Id. at 231 (citing Tucker v. State, 726 So.2d 768, 771-72 (Fla.1999) and State v. Overfelt, 457 So.2d 1385, 1387 (Fla.1984)).
discussed Cited as authority (rule) Noel v. State
Fla. Dist. Ct. App. · 2013 · confidence medium
Galindez recognized that certain pre-Ap prendi decisions — State v. Estevez, 753 So.2d 1, 7 (Fla.1999); State v. Hargrove, 694 So.2d 729, 730 (Fla.1997); and State v. Overfelt, 457 So.2d 1385, 1387 (Fla.1984)— have been superseded by Washington v. Recuenco, 548 U.S. 212 , 126 S.Ct. 2546 , 165 L.Ed.2d 466 (2006) (holding that failure to submit factual issues to the jury is subject to harmless error analysis).
cited Cited as authority (rule) Termitus v. State
Fla. Dist. Ct. App. · 2012 · confidence medium
State v. Overfelt, 457 So.2d 1385, 1387 (Fla.1984) (quoting Overfelt v. State, 434 So.2d 945, 948 (Fla. 4th DCA 1983)); see also State v. Hargrove, 694 So.2d 729, 730 (Fla.1997).
discussed Cited as authority (rule) B.O. v. State
Fla. Dist. Ct. App. · 2009 · confidence medium
In State v. Overfelt, 457 So.2d 1385, 1387 (Fla.1984), the court held that to enhance a sentence because of a defendant’s use of a firearm, the jury must find the defendant guilty of a crime involving a firearm or otherwise specifically find that a firearm was used. 8 Similarly, in State v. Hargrove, 694 So.2d 729, 730 (Fla.1997), the court held that even where evidence regarding the use of a firearm is uncontradicted, a jury must still make that finding if a mandatory minimum sentence is to be imposed.
discussed Cited as authority (rule) BO v. State
Fla. Dist. Ct. App. · 2009 · confidence medium
In State v. Overfelt, 457 So.2d 1385, 1387 (Fla.1984), the court held that to enhance a sentence because of a defendant's use of a firearm, the jury must find the defendant guilty of a crime involving a firearm or otherwise specifically find that a firearm was used. [8] Similarly, in State v. Hargrove, 694 So.2d 729, 730 (Fla.1997), the court held that even where evidence regarding the use of a firearm is uncontradicted, a jury must still make that finding if a mandatory minimum sentence is to be imposed.
discussed Cited as authority (rule) Knight v. State
Fla. Dist. Ct. App. · 2009 · confidence medium
See, e.g., State v. Estevez, 753 So.2d 1, 7 (Fla.1999) (holding that even where the evidence is uncontroverted, to sentence a defendant to a minimum mandatory sentence for trafficking, the jury must make express findings of the amount of cocaine involved); State v. Hargrove, 694 So.2d 729, 730 (Fla.1997) (holding that even where evidence regarding the use of a firearm is unrebutted, to impose mandatory minimum sentence, a jury must make that finding); State v. Overfelt, 457 So.2d 1385, 1387 (Fla.1984) (holding that to enhance a sentence because of the defendant’s use of a firearm, the jury m…
cited Cited as authority (rule) Jacques v. State
Fla. Dist. Ct. App. · 2009 · confidence medium
Id. at 523 (noting that State v. Overfelt, 457 So.2d 1385, 1387 (Fla.1984), was also superseded in this regard).
discussed Cited as authority (rule) Lindsay v. State (2×)
Fla. Dist. Ct. App. · 2009 · confidence medium
Namely, in State v. Overfelt, 457 So.2d 1385, 1387 (Fla.1984), a holding pre-dating the United States Supreme Court’s holding in Apprendi , the Florida Supreme Court ruled, in a similar fashion as the Apprendi court, that a jury, not a judge, is the ultimate fact-finder in a criminal prosecution and, thus, a judge’s determination of factual issues affecting a defendant’s sentence violates the defendant’s right to a trial by jury.
discussed Cited as authority (rule) Galindez v. State
Fla. · 2007 · confidence medium
See, e.g., State v. Estevez, 753 So.2d 1, 7 (Fla.1999) (holding that even where the evidence is uncontroverted, to sentence a defendant to a minimum mandatory sentence for trafficking, the jury must make express findings of the amount of cocaine involved); State v. Hargrove, 694 So.2d 729, 730 (Fla. 1997) (holding that even where evidence regarding the use of a firearm is unrebutted, to impose mandatory minimum sentence, a jury must make that finding); State v. Overfelt, 457 So.2d 1385, 1387 (Fla. 1984) (holding that to enhance a sentence because of the defendant's use of a firearm, the jury m…
examined Cited as authority (rule) Hughes v. State (4×) also: Cited "see, e.g."
Fla. · 2005 · confidence medium
See, e.g., State v. Estevez, 753 So.2d 1, 7 (Fla.1999) (holding that before relevant mandatory minimum sentence can be imposed under cocaine trafficking statute, jury must expressly determine amount of cocaine involved, even in cases where evidence is uncontroverted); State v. Overfelt, 457 So.2d 1385, 1387 (Fla.1984) (stating that "[t]he question of whether an accused actually possessed a firearm while committing a felony is a factual matter properly decided by the jury"). [29] Hence, longstanding Florida law is not only consistent with the holding of Apprendi , but precedes it and our holdin…
cited Cited as authority (rule) Dallas v. State
Fla. Dist. Ct. App. · 2005 · confidence medium
State v. Overfelt, 457 So.2d 1385, 1387 (Fla.1984).
discussed Cited as authority (rule) Jenkins v. State
Fla. Dist. Ct. App. · 2004 · confidence medium
On the verdict form, the jury, while acquitting Jenkins of aggravated battery, found him guilty of the lesser-included offense of battery, by checking the following: "We, the Jury, find the Defendant guilty of Battery on a Law Enforcement Officer." There were no subcategories of battery provided on the forms to the jury; therefore, at sentencing, the trial court, in my judgment, was not permitted to assume that Jenkins' conduct violated section 784.03(1)(a)(2), rather than (1)(a)(1). "`Although a trial judge may make certain findings on matters not associated with the criminal episode when ren…
cited Cited as authority (rule) Gonzalez v. State
Fla. Dist. Ct. App. · 2004 · confidence medium
See Apprendi v. New Jersey, 530 U.S. 466, 490 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000); State v. Overfelt, 457 So.2d 1385, 1387 (Fla.1984).
discussed Cited as authority (rule) Thompson v. State
Fla. Dist. Ct. App. · 2004 · confidence medium
It is well-established that "`[b]efore a trial court may enhance a defendant's sentence or apply the mandatory minimum sentence for use of a firearm, 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.'" State v. Overfelt, 457 So.2d 1385, 1387 (Fla.1984) (quoting Overfelt v. State, 434 So.2d 945, 948 (Fla. 4th DCA 1983)); see also State v. Hargrove, 694 So.2d 729, 730 (Fla.1997).
discussed Cited as authority (rule) Neira v. State
Fla. Dist. Ct. App. · 2003 · confidence medium
This is the first case I have seen in which the appellant admits that Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000) does not require the-jury to make the finding of fact and rests his entire argument on State v. Overfelt, 457 So.2d 1385, 1387 (Fla.1984), in which our supreme court stated: The district court held, and we agree, “that before a trial court may enhance a defendant’s sentence or apply the mandatory minimum sentence for use of a firearm, the jury must make a finding that the defendant committed the crime while using a firearm either by finding hi…
discussed Cited as authority (rule) Butler v. State
Fla. · 2003 · confidence medium
See 833 So.2d at 731-34 (Lewis, J., concurring in result only). [11] See State v. Tripp, 642 So.2d 728, 730 (Fla.1994) ("This special verdict form—not allegations in an information—indicates when a jury finds a weapon has been used."); State v. Overfelt, 457 So.2d 1385, 1387 (Fla.1984) ("The question of whether an accused actually possessed a firearm while committing a felony is a factual matter properly decided by a jury."). [12] As discussed in my concurring-in-result-only opinion in Bottoson , I believe that special verdict forms reflecting unanimous jury findings on aggravating circumsta…
discussed Cited as authority (rule) State v. Estevez (2×)
Fla. · 1999 · confidence medium
See Tucker v. State, 726 So.2d 768 (Fla.1999); State v. Hargrove, 694 So.2d 729, 730 (Fla.1997); State v. Tripp, 642 So.2d 728 (Fla.1994); State v. Overfelt, 457 So.2d 1385, 1386 (Fla. 1984).
discussed Cited as authority (rule) Mashburn v. State
Fla. Dist. Ct. App. · 1999 · confidence medium
The court noted that "`[t]he question of whether an accused actually possessed a firearm while committing a felony is a factual matter properly decided by the jury,'" and that "[t]he special verdict form—not allegations in an information—indicates when a jury finds a weapon has been used." Id. (quoting State v. Overfelt, 457 So.2d 1385, 1387 (Fla.1984)); see also Palmer v. State, 692 So.2d 974 (Fla. 5th DCA 1997) (error to sentence defendant based on possession of semi-automatic weapon where jury merely found that defendant had used a "firearm").
discussed Cited as authority (rule) McCloud v. State
Fla. Dist. Ct. App. · 1999 · confidence medium
In Jones v. United States, 526 U.S. 227 , ___, 119 S.Ct. 1215, 1219 , 143 L.Ed.2d 311 (1999), the United States Supreme Court considered a similar issue and stated: Much turns on the determination that a fact is an element of an offense rather than a sentencing consideration, given that elements must be charged in the indictment, submitted to a jury, and proven by the Government beyond a reasonable doubt. [3] Jones merely restates that which our supreme court held some years earlier in State v. Overfelt, 457 So.2d 1385, 1387 (Fla. 1984), which held: Although a trial judge may make certain find…
discussed Cited as authority (rule) Roberts v. State
Fla. Dist. Ct. App. · 1999 · confidence medium
Johnson v. State, 720 So.2d 232, 237 (Fla.1998) (court may impose mandatory minimum sentence for use of a firearm where jury makes finding that defendant committed crime while using a firearm either by finding defendant guilty of crime involving firearm or by answering specific question of special verdict form so indicating); and State v. Overfelt, 457 So.2d 1385, 1387 (Fla.1984) (same); cf. Redd v. State, 684 So.2d 881 (Fla. 4th DCA 1996) (mandatory minimum sentence for use of firearm during armed robbery improper where evidence at trial failed to establish conclusively that defendant actuall…
discussed Cited as authority (rule) Brown v. State
Fla. Dist. Ct. App. · 1999 · confidence medium
Assuming, but without deciding, that a sentence that is enhanced without a proper factual foundation is fundamental error, we turn to whether the enhancement was proper in this case. ' In State v. Overfelt, 457 So.2d 1385, 1387 (Fla.1984), the court held that “before a trial court may enhance a defendant’s sentence or apply the mandatory minimum sentence for use of a firearm, 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” on a special verdict fo…
discussed Cited as authority (rule) Johnson v. State
Fla. · 1998 · confidence medium
We have held that "before a trial court may enhance a defendant's sentence or apply the mandatory minimum sentence for use of a firearm, 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." State v. Overfelt, 457 So.2d 1385, 1387 (Fla.1984) (emphasis added).
discussed Cited as authority (rule) Palmer v. State
Fla. Dist. Ct. App. · 1997 · confidence medium
See, e.g., State v. Tripp, 642 So.2d 728 (Fla.1994) (error to reclassify felony and enhance sentence based on defendant’s use of a weapon absent special verdict form reflecting jury’s separate finding that defendant used weapon during commission of felony; a finding that defendant is guilty as charged is insufficient to constitute a finding that he used a weapon even though the information alleged use of a weapon during the commission of the offense); State v. Overfelt, 457 So.2d 1385, 1387 (Fla.1984) (“[B]efore a trial court may enhance a defendant’s sentence or apply the mandatory mi…
discussed Cited as authority (rule) White v. State
Fla. Dist. Ct. App. · 1997 · confidence medium
Accordingly, we reverse this matter with directions to the trial court to attach the jury finding that White committed the crime while using a firearm, which can be 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." State v. Overfelt, 457 So.2d 1385, 1387 (Fla. 1984). [1] If no such jury finding exists, the trial court must resentence White without the three-year minimum or the reclassification to a life felony.
cited Cited as authority (rule) Mitchell v. State
Fla. Dist. Ct. App. · 1997 · confidence medium
State v. Overfelt, 457 So.2d 1385, 1387 (Fla.1984)(emphasis added).
cited Cited as authority (rule) Reyes v. State
Fla. Dist. Ct. App. · 1996 · confidence medium
State v. Overfelt, 457 So.2d 1385, 1387 (Fla. 1984) (quoting with approval Overfelt v. State, 434 So.2d 945 (Fla. 4th DCA 1983)).
cited Cited as authority (rule) Delvalle v. State
Fla. Dist. Ct. App. · 1995 · confidence medium
State v. Tripp, 642 So.2d 728 (Fla. 1994); State v. Overfelt, 457 So.2d 1385, 1387 (Fla. 1984).
discussed Cited as authority (rule) Berry v. State
Fla. Dist. Ct. App. · 1995 · confidence medium
As appellant correctly points out: "before a trial court may enhance a defendant's sentence or apply the mandatory minimum sentence for use of a firearm, 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." State v. Overfelt, 457 So.2d 1385, 1387 (Fla. 1984).
discussed Cited as authority (rule) State v. Boykins
Fla. Dist. Ct. App. · 1994 · confidence medium
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 [[Image here]] State v. Overfelt, 457 So.2d 1385, 1387 (Fla. 1984).
discussed Cited as authority (rule) Ada Anisia Lopez-Amaro v. Immigration and Naturalization Service
11th Cir. · 1994 · confidence medium
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. Rodriguez, 602 So.2d 1270, 1272 (Fla.1992), and the “jury must make a finding that the defendant committed the crime while using a firearm.” State v. Overfelt, 457 So.2d 1385, 1387 (Fla.1984).
discussed Cited as authority (rule) Bowser v. State
Fla. Dist. Ct. App. · 1994 · confidence medium
In State v. Overfelt, 457 So.2d 1385, 1387 (Fla. 1984), the supreme court held that in order to impose the firearm mandatory minimum "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." (Emphasis added).
discussed Cited as authority (rule) Mesa v. State
Fla. Dist. Ct. App. · 1994 · confidence medium
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. Stat. (1991)], the jury must make a finding that the defendant committed the crime while using a firearm either [1] by finding him [or her] guilty of a crime which involves a firearm or [2] by answering a specific question of a special verdict form so indicating.'" State v. Overfelt, 457 So.2d 1385, 1387 (Fla. 1984) (quoting with approval from Overfelt v. State, 434 …
discussed Cited as authority (rule) McCollough v. State (2×) also: Cited "see"
Fla. Dist. Ct. App. · 1993 · confidence medium
State v. Overfelt, 457 So.2d 1385, 1387 (Fla.1984).
cited Cited as authority (rule) Vause v. State
Fla. Dist. Ct. App. · 1987 · confidence medium
State v. Overfelt, 457 So.2d 1385, 1387 (Fla. 1984); State v. Smith, 462 So.2d 1102 (Fla. 1985).
discussed Cited "see" Boyce v. State
Fla. Dist. Ct. App. · 2016 · signal: see · confidence high
See State v. Overfelt, 457 So.2d 1385 (Fla.1984) (requiring a jury finding of actual possession to justify imposition of the minimum mandatory sentence pursuant to section 775.087(2)); Arnett v. State, 128 So.3d 87 (Fla. 1st DCA 2013) (holding that minimum mandatory for possessing firearm was illegal where defendant was not charged with being in “actual possession” of the firearm).
cited Cited "see" Pratte v. State
Fla. Dist. Ct. App. · 2006 · signal: see · confidence high
See State v. Overfelt, 457 So.2d 1385, 1387 (Fla.1984).
cited Cited "see" Alusma v. State
Fla. Dist. Ct. App. · 2006 · signal: see · confidence high
See Thompson v. State, 862 So.2d 955 (Fla. 2d DCA 2004) (discussing State v. Overfelt, 457 So.2d 1385 (Fla.1984) and State v. Tripp, 642 So.2d 728 (Fla.1994)).
discussed Cited "see" Wallace v. State
Fla. Dist. Ct. App. · 2006 · signal: see · confidence high
See Bundrage, 814 So.2d at 1135 (“Even if the facts presented to the jury would only support an actual possession theory, the supreme court’s decision in [State v.] Overfelt [, 457 So.2d 1385 (Fla.1984),] and its progeny require a jury finding of actual possession to justify imposition of the ... minimum mandatory sentence.”); accord James, 868 So.2d at 1245 (quoting this language in Bundrage with approval).
discussed Cited "see" Santana v. State
Fla. Dist. Ct. App. · 2006 · signal: see · confidence high
See State v. Overfelt, 457 So.2d 1385 (Fla.1984) (the jury must specifically find that the defendant committed the crime while possessing or using a firearm either by finding him guilty of a crime involving a firearm or by answering a specific question on a verdict form); see also Tucker v. State, 726 So.2d 768 (Fla.1999); State v. Hargrove, 694 So.2d 729 (Fla.1997); State v. Tripp, 642 So.2d 728 (Fla.1994).
cited Cited "see" Blanc v. State
Fla. Dist. Ct. App. · 2005 · signal: see · confidence high
Id.; see Overfelt, 457 So.2d at 1387 .
discussed Cited "see" Harvey v. State (2×)
Fla. Dist. Ct. App. · 2003 · signal: see · confidence high
See State v. Overfelt, 457 So.2d 1385, 1387 (Fla.1984).
discussed Cited "see" Cairl v. State
Fla. Dist. Ct. App. · 2003 · signal: see · confidence high
See State v. Overfelt, 457 So.2d 1385, 1387 (Fla.1984) ("Although a trial judge may make certain findings on matters not associated with the criminal episode when rendering a sentence, it is the jury's function to be the finder of fact with regard to matters concerning the criminal episode.").
cited Cited "see" Altieri v. State
Fla. Dist. Ct. App. · 2002 · signal: see · confidence high
See Overfelt, 457 So.2d at 1385 ; Bryant, 744 So.2d at 1225 ; Gibbs, 623 So.2d at 551 ; Mesa v. State, 632 So.2d 1094 (Fla. 3d DCA 1994).
cited Cited "see" Hunter v. State
Fla. Dist. Ct. App. · 2002 · signal: see · confidence high
See State v. Overfelt, 457 So.2d 1385, 1387 (Fla.1984).
cited Cited "see" Mack v. State
Fla. Dist. Ct. App. · 2002 · signal: see · confidence high
See State v. Overfelt, 457 So.2d 1385 (Fla.1984).
cited Cited "see" Weems v. State
Fla. Dist. Ct. App. · 2001 · signal: see · confidence high
See State v. Overfelt, 457 So.2d 1385 (Fla.1984).
cited Cited "see" Orjales v. State
Fla. Dist. Ct. App. · 2000 · signal: see · confidence high
See State v. Overfelt, 457 So.2d 1385, 1387 (Fla.1984).
discussed Cited "see" Tucker v. State (2×)
Fla. · 1999 · signal: see · confidence high
See id. at 1387 (quoting Overfelt v. State, 434 So.2d 945, 948 (Fla. 4th DCA 1983)).
STATE of Florida, Petitioner,
v.
Robert Dale OVERFELT, Respondent.
64208.
Supreme Court of Florida.
Oct 18, 1984.
457 So. 2d 1385
Boyd.
Cited by 145 opinions  |  Published

[*1386] Jim Smith, Atty. Gen. and Joan Fowler Rossin, Asst. Atty. Gen., West Palm Beach, for petitioner.

Richard L. Jorandby, Public Defender and Tatjana Ostapoff, Asst. Public Defender, 15th Jud. Cir., West Palm Beach, for respondent.

BOYD, Chief Justice.

This case is before the Court on petition for review of the decision in Overfelt v. State, 434 So.2d 945 (Fla. 4th DCA 1983). The district court of appeal certified its decision to be in direct conflict with Gentry v. State, 422 So.2d 1072 (Fla. 2d DCA 1982), on the question of whether the crime of attempted third-degree murder exists in the law of Florida. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.

In Gentry v. State, 437 So.2d 1097 (Fla. 1983), we approved the above-cited decision of the Second District Court of Appeal and held that there is a crime of attempted third-degree murder reasoning as follows:

[T]here are offenses that may be successfully prosecuted as an attempt without proof of a specific intent to commit the relevant completed offense. The key to recognizing these crimes is to first determine whether the completed offense is a crime requiring specific intent or general intent. If the state is not required to show specific intent to successfully prosecute the completed crime, it will not be required to show specific intent to successfully prosecute an attempt to commit that crime. We believe there is logic in this approach and that it comports with legislative intent. Second-degree and third-degree murder under our statutes are crimes requiring only general intent.

Id. at 1098-99. We therefore take jurisdiction of this case pursuant to article V, section 3(b)(4), Florida Constitution, to quash that portion of the district court's opinion that conflicts with our holding in Gentry. On remand the judgment of conviction of attempted third-degree murder should be reinstated. See also Amlotte v. State, 456 So.2d 448 (Fla. 1984).

With regard to the second issue raised by the state's petition for review, we find no error and approve that portion of the decision of the district court of appeal. This second issue concerns the question of whether there must be a specific jury finding that an accused actually possessed a firearm before a trial court can apply the enhancement and mandatory sentencing provisions of section 775.087, Florida Statutes (1983). In this case Overfelt was charged with, among other crimes, two counts of attempted first-degree murder. On these charges the jury found him guilty of the lesser included offenses of attempted third-degree murder on one count and aggravated 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),[*1387] 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).

The district court held, and we agree, "that before a trial court may enhance a defendant's sentence or apply the mandatory minimum sentence for use of a firearm, 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." 434 So.2d at 948. See also Hough v. State, 448 So.2d 628 (Fla. 5th DCA 1984); Smith v. State, 445 So.2d 1050 (Fla. 1st DCA 1984); Streeter v. State, 416 So.2d 1203 (Fla. 3d DCA 1982); Bell v. State, 394 So.2d 570 (Fla. 5th DCA 1981). But see Tindall v. State, 443 So.2d 362 (Fla. 5th DCA 1983). The question of whether an accused actually possessed a firearm while committing a felony is a factual matter properly decided by the jury. Although a trial judge may make certain findings on matters not associated with the criminal episode when rendering a sentence, it is the jury's function 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.

The decision of the district court of appeal is quashed in part and approved in part. We remand this case with instructions that Overfelt's conviction of attempted third-degree murder be reinstated and that he be resentenced in accordance with the views expressed in this opinion.

It is so ordered.

ADKINS, OVERTON, McDONALD and SHAW, JJ., concur.

ALDERMAN, J., concurs in part and dissents in part with an opinion in which EHRLICH, J., concurs.

ALDERMAN, Justice, concurring in part, dissenting in part.

I concur with that portion of the majority opinion which reinstates Overfelt's conviction of attempted third-degree murder. As to the second issue, however, I disagree with the Court's holding that there must be a specific jury finding that an accused actually possessed a firearm before the trial court can apply the enhancement and mandatory sentencing provisions of section 775.087, Florida Statutes (1983). A defendant can be sentenced to the three-year mandatory minimum under this provision without such a specific finding by the jury. In my view, the trial court, in the context of sentencing a defendant, can make a finding from the evidence that a firearm was used without any express indication by the jury as to its use. I agree with the rationale and holding of the Fifth District Court of Appeal in Tindall v. State, 443 So.2d 362 (Fla. 5th DCA 1983), that where a defendant is charged with a crime which requires possession of a firearm to commit the crime or where the allegations and the proof lead to the inescapable conclusion that defendant possessed a firearm during the commission of the crime, the jury need not render a specific verdict finding such firearm possession in order for the trial court to impose the three-year minimum mandatory sentence under section 775.087(2). This determination is part of the sentencing process and may be made by the trial court.

Accordingly, I would quash the decision of the Fourth District and reinstate the conviction and sentence for attempted third-degree murder, the felony reclassification, and the three-year mandatory minimum sentence.

EHRLICH, J., concurs.