FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit
Court for Hillsborough County; Kimberly K. Fernandez, Judge.
Charles Clark, pro se.
Clark appeals the summary denial of his postconviction motion
filed under Florida Rule of Criminal Procedure 3.800(a).
Although we affirm the postconviction court's order in
all respects, we write to explain our reasoning.
THE FACTUAL AND PROCEDURAL BACKGROUND
December 1996, a jury convicted Mr. Clark of three crimes:
(1) count one, attempted second-degree murder with a weapon;
(2) count two, robbery with a deadly weapon; and (3) count
three, obstructing an officer without violence. The
information alleged that each of the three crimes was
committed on September 6, 1996.
crime of attempted second-degree murder charged in count one
is a second-degree felony. See § 782.04(2),
Fla. Stat. (Supp. 1996); § 777.04(4), Fla. Stat. (1995).
However, the crime of attempted second-degree murder was
reclassified as a first-degree felony based on the jury's
finding that Mr. Clark committed the offense with a weapon.
See § 775.087(1), Fla. Stat. (Supp. 1996). The
trial court sentenced Mr. Clark as a habitual felony offender
(HFO) to life in prison on counts one and two and to time
served on count three. Mr. Clark took a direct appeal of his
judgment and sentences, and this court affirmed. Clark v.
State, 719 So.2d 293 (Fla. 2d DCA 1998) (table
decision). After the affirmance of his judgment and
sentences, Mr. Clark has filed several prior postconviction
most recent rule 3.800(a) motion, Mr. Clark raises two
claims. First, he argues that his sentence on count one is
illegal because the jury did not make the requisite finding
that he carried, displayed, used, or threatened to use a
weapon to support the reclassification of the conviction for
attempted second-degree murder from a second-degree felony to
a first-degree felony. See § 775.087(1)(b). As
part of his first claim, Mr. Clark also alleges that
"section 775.087(1) does not permit vicarious
enhancement." Second, Mr. Clark alleges that although he
qualified for sentencing on count one as an HFO, his sentence
could not exceed the thirty-year HFO maximum for a
second-degree felony because the jury's finding was
postconviction court summarily denied both of Mr. Clark's
claims. On the first claim, the postconviction court ruled
that the crime of attempted second-degree murder was properly
reclassified as a first-degree felony because the verdict
form sufficiently reflected "a clear finding that
Defendant committed the charged crimes with a weapon."
The postconviction court denied Mr. Clark's second claim
The First Claim
postconviction court properly denied Mr. Clark's first
claim because the attempted second-degree murder charged in
count one was properly reclassified from a second-degree
felony to a first-degree felony. The Florida Supreme Court
has held that in a case in which there is only one defendant,
reclassification is proper as long as there is "a clear
jury finding" that the defendant used a weapon or
firearm. Tucker v. State, 726 So.2d 768, 772 (Fla.
1999) (quoting State v. Hargrove, 694 So.2d 729, 731
(Fla. 1997)) (holding that the jury's verdict that the
defendant was "guilty of attempted first degree murder
with a firearm" was sufficient to support
reclassification under section 775.087(1) where there was
only one defendant and assailant). Here, there is no
indication that Mr. Clark has a codefendant or that another
assailant was involved in the underlying events. The
information attached to the postconviction court's order
alleged that Mr. Clark, not someone else, struck the victim
with "a brick and/or shovel." Furthermore, as was
the case in Tucker, the verdict form attached to the
order under review clearly referenced the use of a weapon in
the commission of the offense. See Tucker, 726 So.2d
at 772. Under these circumstances, the jury's finding
that Mr. Clark used a weapon was sufficient to support the
reclassification of the offense from a second-degree felony
to a first-degree felony. To the extent that Mr. Clark argues
that the crime charged in count one was subject to improper
"vicarious enhancement, " the claim is without
merit because Mr. Clark did not have a codefendant. See
State v. Rodriguez, 602 So.2d 1270, 1271 (Fla. 1992)
("[S]ection 775.087(1) does not, by its terms, allow for
vicarious enhancement because of the action of a
codefendant."). Thus, the postconviction court properly
denied Mr. Clark's first claim.