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Clark v. State

Florida Court of Appeals, Second District

August 30, 2017

CHARLES CLARK, DOC #474089, Appellant,
v.
STATE OF FLORIDA, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

         Appeal 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.

          WALLACE, Judge.

         Charles 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.

         I. THE FACTUAL AND PROCEDURAL BACKGROUND

         In 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.

         The 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 motions.

         In his 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 insufficient.

         The 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 as successive.

         II. DISCUSSION

         A. The First Claim

         The 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.

         B. ...


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