Opinion
No. 90609.
July 16, 1998.
Application for Review of the Decision of the District Court of Appeal — Certified Direct Conflict of Decisions Fourth District — Case No. 96-2477 (Broward County).
Robert A. Butterworth, Attorney General, and Denise S. Calegan, Assistant Attorney General, West Palm Beach, Florida, for Petitioner.
Richard L. Jorandby, Public Defender, and Anthony Calvello, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, Florida, for Respondent.
We have for review the decision in State v. Walton, 693 So.2d 135 (Fla. 4th DCA 1997), which the district court certified to be in conflict with the opinions in State v. Davidson, 666 So.2d 941 (Fla. 2d DCA 1995), Gardner v. State, 661 So.2d 1274 (Fla. 5th DCA 1995), and Smith v. State, 683 So.2d 577 (Fla. 5th DCA 1996), review dismissed, 691 So.2d 1081 (Fla. 1997), concerning the issue of whether additional sentencing points for carrying or possessing a firearm during the commission of a crime may be added to a defendant's sentencing score where the defendant is convicted of carrying a concealed weapon or possession of a firearm by a convicted felon. We have jurisdiction. Art. V, § 3(b)(4), Fla. Const.
Recently, we resolved this conflict in White v. State, 23 Fla. L. Weekly S 311 (Fla. June 12, 1998), wherein we held that it is error for a trial court to assess additional sentencing points for possessing a firearm where the sole underlying crime is carrying a concealed firearm or possession of a firearm by a convicted felon. In other words, we held that rule 3.702(d)(12) of the Florida Rules of Criminal Procedure and section 921.0014, Florida Statutes (1993), do not contemplate the addition of sentencing points for carrying or possessing a firearm where the carrying or possession of a firearm is the essential element of the underlying offense. In so holding, we approved the Fourth District's opinion in Galloway v. State, 680 So.2d 616 (Fla. 4th DCA 1996), and quashed the Second District's decision in White v. State, 689 So.2d 371 (Fla. 2d DCA 1997).
Therefore, in accordance with our opinion in White, we approve the Fourth District's decision in Walton.
It is so ordered.
HARDNG, C.J., and OVERTON, SHAW, KOGAN and ANSTEAD, JJ., concur.
WELLS, J., dissents with an opinion.
I dissent for the reasons stated in my dissenting opinions in Asbell v. State, No. 91,078 (Fla. July 16, 1998); and White v. State, 23 Fla. L. Weekly S311 (Fla. June 12, 1998).