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IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
JANUARY TERM 2003
JODY TORRES,
Appellant,
v.
Case No. 5D02-3078
STATE OF FLORIDA,
Appellee.
/
Opinion Filed June 20, 2003
Appeal from the Circuit Court
for Brevard County,
Tonya Rainwater, Judge.
Kurt Erlenbach of Kurt Erlenbach, P.A., Titusville,
for Appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee,
and Allison Leigh Morris, Assistant Attorney General,
Daytona Beach, for Appellee.
PLEUS, J.
Torres appeals an order resentencing him for attempted second degree murder with
a firearm, robbery with a firearm and shooting into an occupied motor vehicle. He argues
that the lower court erred in assessing 18 points for possession of a firearm on the
shooting into an occupied motor vehicle count because the firearm he possessed was not
used in the commission of that crime. We affirm.
Torres was convicted and sentenced for the above mentioned crimes in 1996. He

sought a Heggs1 resentencing, which this court ordered in Torres v. State, 798 So. 2d 777
(Fla. 5th DCA 2001). At his resentencing hearing, the state requested imposition of 18
points for possession of a firearm during the commission of the shooting into an occupied
vehicle count. The state conceded that Torres was tried as a principal to that crime, not
as the shooter, but he was present during the shooting and possessed a firearm. The
lower court imposed the 18 points over Torres' objections and he appeals.
Torres argues that the lower court erred in assessing 18 points on his scoresheet
because the gun he possessed did not work and was not used to commit the offense. He
cites Lopez v. State, 833 So. 2d 283 (Fla. 5th DCA 2002) for the proposition that firearm
points can be assessed only against the person who actually commits the shooting into an
occupied vehicle, not his principal.
Torres misreads Lopez. In that case, the jury found the defendant guilty of
carjacking with a firearm and robbery with a firearm, but entered a special finding that he
did not possess a firearm. We concluded the defendant was properly convicted as a
principal to those crimes but that firearm points were not proper in pertinent part because
the jury specifically found that the defendant did not possess a firearm. Id. at 285.
The instant case is distinguishable because Torres possessed a firearm during the
commission of the offense, even though he was not the person who shot into the occupied
vehicle. The state relies on section 921.0014(1), Florida Statutes (1995), and Florida Rule
of Criminal Procedure 3.702 (1996). Section 921.0014(1) states in pertinent part:
If the offender is convicted of committing or attempting to
commit any felony other than those enumerated in s.
1 Heggs v. State, 759 So. 2d 620 (Fla. 2000).
2

775.087(2) while having in his or her possession: a firearm as
defined in s. 790.001(6), an additional 18 sentence points are
assessed;
Rule 3.702(12) states in pertinent part:
Eighteen sentence points shall be assessed where the
defendant is convicted of committing or attempting to commit
any felony other than those enumerated in subsection
775.087(2) while having in his or her possession a firearm as
defined in subsection 790.001(6) or a destructive device as
defined in subsection 790.001(4).
The state argues that the plain meaning of these passages is clear. The law is intended
to punish people in possession of a firearm, not just those who use a firearm, during the
commission of particular offenses.
Torres suggests numerous hypothetical scenarios in which points assessed against
a principal could lead to absurd results. It is unnecessary to address these scenarios since
the statute and rule clearly contemplate assessing points under the facts of the instant
case where Torres was at the scene of the crime and possessed a firearm while
participating in the commission of the offense. Imposition of firearm points under these
facts is consistent with the purpose of the statute: to punish offenders who possess
firearms while committing offenses.
Finally, Torres' argument that he cannot be assessed points because his gun was
not functioning lacks merit. He cites no authority to support this argument. Section
790.001(6), Florida Statutes (1995), defines a firearm as "any weapon (including a starter
gun) which will, is designed to, or may readily be converted to expel a projectile by the
action of an explosive." This definition does not require that the firearm be operable. See
Clayton v. State, 842 So. 2d 971 (Fla. 5th DCA 2003).
3

Accordingly, we affirm Torres' sentence.
AFFIRMED.
SHARP, W. and PALMER, JJ., concur.
4

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