FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Appeal from the Circuit Court for Orange County, Mark S.
Hurd, White City, pro se.
Jo Bondi, Attorney General, Tallahassee, and Allison L.
Morris, Assistant Attorney General, Daytona Beach, for
Rodney Hurd, appeals the summary denial of his motion to
correct illegal sentence filed pursuant to Florida Rule of
Criminal Procedure 3.800(a). Appellant argues that the trial
court illegally reclassified his convictions for attempted
voluntary manslaughter and resisting an officer with violence
pursuant to section 775.087(1), Florida Statutes (2010),
based on his use of an automobile as a weapon, citing to
Gonzalez v. State, 197 So.3d 84 (Fla. 2d DCA 2016).
We find no error and affirm.
Gonzalez, our sister court held, as a matter of law,
that an automobile is not a weapon as that term is used in
section 775.087(1). 197 So.3d at 86. In that case, the trial
court reclassified a manslaughter conviction, pursuant to
section 775.087(1), because the defendant used an automobile
as a weapon when he backed over his victim. Id. at
84-85. On appeal, the second district reversed, relying on
the supreme court's analysis in State v. Houck,
652 So.2d 359 (Fla. 1995), and State v. Burris, 875
So.2d 408 (Fla. 2004).
Houck, the jury found the defendant guilty of
manslaughter with a weapon where the defendant beat the
victim's head against the pavement resulting in the
victim's death. 652 So.2d at 359. The trial court
reclassified the offense to a first-degree felony pursuant to
section 775.087(1) based on the defendant's use of the
pavement as a weapon. Id. On appeal, this court
reversed, holding that pavement is not a weapon pursuant to
section 775.087(1), and certified the issue as one of great
public importance. Id. at 359-60. In so doing, we
observed that "[o]ther jurisdictions have strictly
construed their statutes to conclude that pavement and
other stationary fixtures are not dangerous or deadly
weapons." Houck v. State, 634 So.2d 180, 182-83
(Fla. 5th DCA 1994) (emphasis added).
review, the supreme court agreed and held that pavement is
not a "weapon" as that term is used in section
775.087(1). Houck, 652 So.2d at 360. The statute
does not define the term, so the court consulted the American
Heritage College Dictionary, which defined "weapon"
as: "1. An instrument of attack or defense in combat, as
a gun or sword. . . . 3. A means used to defend against or
defeat another." Id. (quoting American
Heritage College Dictionary 1529 (3d ed. 1993)). Thus,
the court reasoned that a paved surface is not commonly
understood to be an "instrument for combat against
another person." Id. However, the court also
invited the Legislature to amend the statute if it intended
for pavement and "similar passive objects" to be
considered weapons. Id.
in Burris, the supreme court considered whether an
automobile could be "carried" as a "deadly
weapon" for purposes of the robbery statute. 875 So.2d
at 410. In that case, the defendant grabbed the victim's
purse as he drove by, dragging her with his pickup truck.
Id. at 409. The defendant was charged by information
alleging that he "used" his truck as a deadly
weapon. Id. He moved to dismiss the charge, arguing
that the robbery statute only prohibited "carrying"
a weapon, not "using" one, but the trial court
denied the motion. Id. On appeal, this court
reversed and held that an automobile could not be
"carried" as that term is used in the robbery
statute. Id. at 410.
supreme court agreed, after considering several dictionary
definitions for the term "carry." Id. at
411-12. In its opinion, the court reasoned that "[l]ike
the pavement used by the offender in Houck, an
automobile is not commonly understood to be an instrument for
combat against another person." Id. at 413. At
the same time, the court also recognized that automobiles
have been held to be "deadly weapons in other criminal
statutes." Id. (citations omitted). In
distinguishing those cases, the court noted that "those
statutes under which automobiles are deemed deadly weapons
proscribe the 'use' of a deadly weapon as an element
of either aggravated assault or aggravated battery."
Id. Thus, the court instructed that "[b]y
contrast, the requirement in the robbery statute that an
offender 'carry, ' as opposed to 'use, ' a
deadly weapon tends to exclude automobiles as deadly
Houck and Burris did not squarely address
the issue before us here, they are consistent with a
conclusion that an automobile can be a weapon as that term is
used in section 775.087(1), Florida Statutes. Section
775.087(1) reclassifies certain felonies if "during the
commission of such felony the defendant carries, displays,
uses, threatens to use, or attempts to
use any weapon or firearm." § 775.087(1),
Fla. Stat. (emphasis added). We agree with Burris
that one cannot "carry" an automobile as a weapon.
However, unlike the robbery statute at issue in
Burris, which proscribed only the
"carrying" of a weapon, the statute here also
clearly proscribes the "use" of a weapon. We find
the reasoning in Burris, which distinguished between
statutes that proscribe the "carrying" of a weapon
from those which proscribe the "use" of a weapon,
agree with Houck's holding that pavement is not
a weapon. In that case, while the supreme court considered
whether stationary objects like pavement could be considered
a weapon for purposes of section 775.087(1), it did not
decide whether an automobile is a weapon. Unlike the pavement
in Houck, which is clearly not an "instrument,
" an automobile is not a stationary or "passive
object, " and as the facts here demonstrate, an
automobile can be wielded as an "instrument of attack .
. . in combat."
some of the dicta used in Houck and Burris,
when considered in isolation, support the decision in
Gonzalez, we cannot agree with our sister
court's conclusion. In Gonzalez, the second
district emphasized the analysis in Burris that
"[l]ike the pavement used by the offender in
Houck, an automobile is not commonly understood to
be an instrument for combat against another person." 197
So.3d at 85-86. Had the supreme court stopped there,
Gonzalez might stand on firmer ground. However,
Burris then recognized that an automobile is
considered a weapon for purposes of some statutes.
Importantly, Gonzalez does not account for the
distinction made in Burris between statutes
proscribing the carrying of a weapon and those
proscribing the use of a weapon. See