          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
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                          No. 1D17-3328
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MICHAEL JON MOSS,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                  _____________________________


On appeal from the Circuit Court for Alachua County.
William E. Davis, Judge.

                           May 13, 2019


B.L. THOMAS, C.J.

     Appellant challenges his judgment and sentence, arguing that
his use of a firearm could not be used to reclassify his offense under
section 775.087(1), Florida Statutes.
     The jury found Appellant guilty of attempted first-degree
murder. The jury also found by separate interrogatory that
Appellant actually possessed a firearm during the commission of
the offense. After a hearing on Appellant’s motion to prohibit
reclassification, the court ruled that the attempted first-degree
murder offense would be reclassified to a life felony.
      Section 775.087(1)(a), Florida Statutes, allows attempted
first-degree felonies to be reclassified as life felonies, if the
defendant uses a firearm during the commission of the felony,
except where the use of a firearm is an essential element of the
crime. Appellant argues that possession of a firearm was essential
to the offense, where the attempted murder resulted from shooting
a firearm at a residence and Appellant was sentenced to a
mandatory minimum term under “10-20-Life,” section 775.087(2),
Florida Statutes.
     The elements of attempted first-degree murder are (1) an act
intending to cause death that went beyond just thinking or talking
about it; (2) a premeditated design to kill; and (3) the commission
of an act which would have resulted in the death of the victim
except that someone prevented the defendant from killing the
victim or the defendant failed to do so. Gordon v. State, 780 So. 2d
17, 21 (Fla. 2001); § 782.04(1) Fla. Stat. (2017); § 777.04(1), Fla.
Stat. (2017). Even where the defendant’s “only ‘act toward
commission of the murder’ was the firing of a gun,” the use of a
firearm does not constitute an essential element of the offense, as
“a conviction of attempted first-degree murder does not require
that the act be committed with a firearm, or in any other specific
way . . . .” Lentz v. State, 567 So. 2d 997, 998 (Fla. 1st DCA 1990).
Therefore, the use of a firearm is not an essential element of
attempted murder, and the trial court did not err in enhancing the
penalty from a first-degree felony to a life felony.
     Appellant cites to Alleyne v. United States, 570 U.S. 99, 107
(2013), in which the Supreme Court stated that a fact “that
increase[s] the ceiling,” that is, a fact that increases the maximum
punishment for an offense, “is an element of the offense.” (citing
Apprendi v. New Jersey, 530 U.S. 466, 483 n.10 (2000)). Appellant
argues that because the use of a firearm increased the maximum
punishment of Appellant’s attempted murder charge under 10-20-
Life, the use of firearm is an element of the charged offense, and
thus this fact cannot be used for enhancement under section
775.087(1), Florida Statutes.
      However, “[t]he sentence enhancement created in section
775.087(1) is not itself a substantive offense or an element of any
underlying offense.” Birch v. State, 248 So. 3d 1213, 1219 (Fla. 1st
DCA 2018). While the use of a firearm constitutes an “element” in
the context of Apprendi because it is a fact that must be submitted
to a jury, the enhancement does not alter the underlying offense to
include possession of a firearm as an “essential element.” See

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Birch, 248 So. 2d at 1219 (holding “a jury's 10–20–Life finding has
no legal bearing on the findings or evidence required to convict of
an underlying crime”). In other words, had the jury found
Appellant did not actually possess a firearm while committing the
attempted murder Appellant would not have been acquitted of
attempted murder; rather, he only would not be subjected to a
twenty-year mandatory minimum term under 10-20-Life.
Therefore, the use of a firearm is not an “essential element” of
attempted murder, and the trial court did not commit a
constitutional error in reclassifying Appellant’s offense. We reject
all other arguments made by Appellant.
    AFFIRMED.
KELSEY, J., concurs; WINOKUR, J., concurs specially with opinion.

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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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WINOKUR, J., concurring specially.

     I concur in the decision to affirm Moss’ sentence against his
claim that Alleyne v. United States, 570 U.S. 99 (2013), prohibits
reclassification of attempted first-degree murder under section
775.087(1), Florida Statutes, from a first-degree felony to a life
felony. 1 However, I do not think this result flows from a distinction
between “element,” as that term is used in Alleyne, and “essential


    1 Generally, Moss’ twenty-year mandatory sentence would
have been permissible even if the offense had not been reclassified.
See § 775.087(2)(a)2., Fla. Stat. (mandating that a person who
discharges a firearm in the commission of certain felonies “shall be
sentenced to a minimum term of imprisonment of 20 years”).
However, Moss sought sentencing as a youthful offender, which
could have removed the mandatory twenty-year sentence, but is
unavailable for life felonies. § 958.04(1) & (2), Fla. Stat.

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element,” as that phrase is used in section 775.087(1), Florida
Statutes.
     Alleyne held that, consistent with the Sixth Amendment,
“facts that increase mandatory minimum sentences must be
submitted to a jury.” 570 U.S. at 116. This holding does not apply
to the reclassification of Moss’ offense under section 775.087(1)
because reclassification does not create a mandatory minimum
sentence. 2 More importantly, Alleyne’s holding did not alter the
definition of the term “element.”
     Moss’ argument to the contrary takes Alleyne out of context in
an attempt to undermine section 775.087(1). In fact, Moss’
interpretation would render section 775.087(1) meaningless: an
offense is only eligible for section 775.087(1) reclassification if it
does not require use of a firearm as an element, yet an allegation
that the offender used a firearm in an offense would automatically
transform the offense into one that requires use of a firearm, thus
precluding section 775.087(1) reclassification. This would apply to
any attempt to reclassify under section 775.087(1). Nothing about
the language or intent of Alleyne shows that it was meant to
invalidate reclassification statutes like section 775.087(1).
     Under Alleyne, an offense that does not require use of a
firearm is a “core crime,” and use of a firearm in that offense to
enhance the available sentence is an “aggravated crime.” 570 U.S.
at 113, 116 (noting that “the core crime and the fact triggering the
mandatory minimum sentence together constitute a new,
aggravated crime, each element of which must be submitted to the
jury” and “the aggravating fact produced a higher range, which, in
turn, conclusively indicates that the fact is an element of a distinct
and aggravated crime”) (footnote omitted).           Thus, the un-
aggravated crime, a “core crime” under Alleyne, is the same as the

    2 Even though Alleyne does not apply, Florida law has long
required the jury to make the finding of firearm use before an
offense could be reclassified under section 775.087(1). State v.
Overfelt, 457 So. 2d 1385 (Fla. 1984). See also Apprendi v. New
Jersey, 530 U.S. 466, 490 (2000) (“Other than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond
the prescribed statutory maximum must be submitted to a jury,
and proved beyond a reasonable doubt.”).
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crime “in which the use of a weapon or firearm is [not] an essential
element” under section 775.087(1). And because this “core crime”
does not require use of a firearm, it can be reclassified under
section 775.087(1). This observation is enough to show that
Alleyne does not redefine “element” in a way to invalidate section
775.087(1).
     It is true that section 775.087(1) excludes crimes that do not
include firearm use as an “essential element,” a term slightly
different from the term “element” used in Alleyne. But it is not this
difference that controls the result. It is the fact that section
775.087(1) has always defined “element” in a manner that permits
reclassification of crimes such as attempted first-degree murder,
and no reasons exists to alter this conclusion because the Supreme
Court found in 2013 that the Sixth Amendment requires a jury
finding for each “element.” Because Alleyne is in fact consistent
with the longstanding interpretation of section 775.087(1), Moss’
argument the should be rejected.
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Andy Thomas, Public Defender, Joanna Aurica Mauer and
Kathleen Pafford, Assistant Public Defenders, Tallahassee, for
Appellant.

Ashley Moody, Attorney General, Sharon S. Traxler, Assistant
Attorney General, Tallahassee, for Appellee.




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