Walker v. State

580 So. 2d 281 (1991)

Donald WALKER, Appellant,
v.
STATE of Florida, Appellee.

No. 90-1919.

District Court of Appeal of Florida, Fourth District.

May 15, 1991. Rehearing and Certification Denied June 20, 1991.

Richard L. Jorandby, Public Defender and Tania Ostapoff, Asst. Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Georgina Jimenez-Orosa, West Palm Beach, for appellee.

PER CURIAM.

We affirm appellant's conviction for second degree murder with a firearm. Walker was sentenced as a habitual violent offender under section 775.084(4)(b)1, Florida Statutes (1989), to life without eligibility for release for 15 years. We reverse that enhancement.

As the First District did in Johnson v. State, 568 So. 2d 519 (Fla. 1st DCA 1990), we conclude that his second degree murder was already enhanced to a life felony under section 775.087(1)(a) for use of a firearm and thus could not be additionally enhanced under section 775.084(4)(b)1 because it was no longer a first degree felony. Under the plain language of the statute, only first degree felonies — not those which are already made life felonies — can be enhanced under section 775.084(4)(b)1. Appellant's third issue on appeal is now moot by this disposition.

AFFIRMED IN PART; REVERSED IN PART.

DOWNEY, GUNTHER and FARMER, JJ., concur.