NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING

MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT

CHARLES CLARK, DOC #474089, )

)

Appellant, )

)

v. ) Case No. 2D16-5292

)

STATE OF FLORIDA, )

)

Appellee. )

________________________________ )

Opinion filed August 30, 2017.

Appeal pursuant to Fla. R. App. P. 

9.141(b)(2) from the Circuit Court for 

Hillsborough County; Kimberly K. 

Fernandez, Judge.

Charles Clark, pro se.

WALLACE, Judge.

Charles Clark appeals the summary denial of his postconviction motion 

filed under Florida Rule of Criminal Procedure 3.800(a). Although we affirm the 

postconviction court's order in all respects, we write to explain our reasoning.

I. THE FACTUAL AND PROCEDURAL BACKGROUND

In December 1996, a jury convicted Mr. Clark of three crimes: (1) count 

one, attempted second-degree murder with a weapon; (2) count two, robbery with a 
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deadly weapon; and (3) count three, obstructing an officer without violence. The 

information alleged that each of the three crimes was committed on September 6, 1996.

The crime of attempted second-degree murder charged in count one is a 

second-degree felony. See § 782.04(2), Fla. Stat. (Supp. 1996); § 777.04(4), Fla. Stat. 

(1995). However, the crime of attempted second-degree murder was reclassified as a 

first-degree felony based on the jury's finding that Mr. Clark committed the offense with 

a weapon. See § 775.087(1), Fla. Stat. (Supp. 1996). The trial court sentenced Mr. 

Clark as a habitual felony offender (HFO) to life in prison on counts one and two and to 

time served on count three. Mr. Clark took a direct appeal of his judgment and 

sentences, and this court affirmed. Clark v. State, 719 So. 2d 293 (Fla. 2d DCA 1998) 

(table decision). After the affirmance of his judgment and sentences, Mr. Clark has filed 

several prior postconviction motions.

In his most recent rule 3.800(a) motion, Mr. Clark raises two claims. First, 

he argues that his sentence on count one is illegal because the jury did not make the 

requisite finding that he carried, displayed, used, or threatened to use a weapon to 

support the reclassification of the conviction for attempted second-degree murder from 

a second-degree felony to a first-degree felony. See § 775.087(1)(b). As part of his 

first claim, Mr. Clark also alleges that "section 775.087(1) does not permit vicarious 

enhancement." Second, Mr. Clark alleges that although he qualified for sentencing on 

count one as an HFO, his sentence could not exceed the thirty-year HFO maximum for 

a second-degree felony because the jury's finding was insufficient.

The postconviction court summarily denied both of Mr. Clark's claims. On 

the first claim, the postconviction court ruled that the crime of attempted second-degree 
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murder was properly reclassified as a first-degree felony because the verdict form 

sufficiently reflected "a clear finding that Defendant committed the charged crimes with 

a weapon." The postconviction court denied Mr. Clark's second claim as successive.

II. DISCUSSION

A. The First Claim

The postconviction court properly denied Mr. Clark's first claim because 

the attempted second-degree murder charged in count one was properly reclassified 

from a second-degree felony to a first-degree felony. The Florida Supreme Court has 

held that in a case in which there is only one defendant, reclassification is proper as 

long as there is "a clear jury finding" that the defendant used a weapon or firearm. 

Tucker v. State, 726 So. 2d 768, 772 (Fla. 1999) (quoting State v. Hargrove, 694 So. 2d 

729, 731 (Fla. 1997)) (holding that the jury's verdict that the defendant was "guilty of 

attempted first degree murder with a firearm" was sufficient to support reclassification 

under section 775.087(1) where there was only one defendant and assailant). Here, 

there is no indication that Mr. Clark has a codefendant or that another assailant was 

involved in the underlying events. The information attached to the postconviction court's 

order alleged that Mr. Clark, not someone else, struck the victim with "a brick and/or 

shovel." Furthermore, as was the case in Tucker, the verdict form attached to the order 

under review clearly referenced the use of a weapon in the commission of the offense. 

See Tucker, 726 So. 2d at 772. Under these circumstances, the jury's finding that Mr. 

Clark used a weapon was sufficient to support the reclassification of the offense from a 

second-degree felony to a first-degree felony. To the extent that Mr. Clark argues that 

the crime charged in count one was subject to improper "vicarious enhancement," the 
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claim is without merit because Mr. Clark did not have a codefendant. See State v. 

Rodriguez, 602 So. 2d 1270, 1271 (Fla. 1992) ("[S]ection 775.087(1) does not, by its 

terms, allow for vicarious enhancement because of the action of a codefendant."). 

Thus, the postconviction court properly denied Mr. Clark's first claim.

B. The Second Claim

In his second claim, Mr. Clark asserted that—despite his sentencing as an 

HFO—he could not properly be sentenced to more than thirty years in prison. The 

postconviction court denied Mr. Clark's second claim as successive. However, the 

order of June 2015 that the postconviction court attached to the order under review as 

support for its ruling reflects that Mr. Clark previously alleged a different error, claiming 

that the trial court's oral pronouncement of sentence did not comport with the written 

sentence. This is not the claim that he asserts in his current claim.

Nevertheless, the second claim lacks merit. As noted above, the offense 

of attempted second-degree murder with a weapon alleged in count one of the 

information was properly reclassified as a first-degree felony. Section 775.084(4)(a)(1) 

provides that a trial court "may sentence the habitual felony offender . . . [i]n the case of 

a life felony or a felony of the first degree, for life." Mr. Clark does not argue that he did 

not qualify for an HFO sentence. Thus, because he was convicted of a first-degree 

felony and qualified as an HFO, he was properly sentenced to life in prison on count 

one of the information.

III. CONCLUSION

For the foregoing reasons, we affirm the postconviction court's order that 

summarily denied Mr. Clark's rule 3.800(a) motion.
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Affirmed.

CRENSHAW and BADALAMENTI, JJ., Concur.