Opinion
No. 76-1757.
December 20, 1977.
Appeal from the Circuit Court, Dade County, Lenore C. Nesbitt, J.
Bennett H. Brummer, Public Defender and Warren S. Schwartz, Asst. Public Defender and Randolph Ferguson, Legal Intern, for appellant.
Robert L. Shevin, Atty. Gen. and Joel D. Rosenblatt, Asst. Atty. Gen. and Lonworth Butler, J., Legal Intern, for appellee.
Before HENDRY, C.J., HAVERFIELD, J., and DREW, E. HARRIS, (Ret.), Associate Judge.
Defendant, Ellen Rozier, presents two points on appeal of her conviction and sentence for manslaughter.
Only one point has merit, to wit: the trial court erred in sentencing her to five years imprisonment and then invoking Section 775.087(2), Florida Statutes (1975) by further ordering that she shall not be eligible for parole until she has served three calendar years of the sentence.
Manslaughter for which defendant was convicted clearly is not one of the crimes specified in Section 775.087(2), Florida Statutes which provides for a mandatory three year sentence upon conviction of the offenses listed therein when a firearm is used. Brewer v. State, 343 So.2d 628 (Fla. 4th DCA 1977); Biles v. State, 349 So.2d 662 (Fla. 4th DCA 1977).
Accordingly, the provision of the sentence requiring a minimum sentence of three years during which defendant would not be eligible for parole is hereby stricken. The judgment and sentence of the trial court are affirmed in all other respects.