SHELDON RASHAD REDDING, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Sheldon Redding appeals his conviction for possession of a firearm by a convicted felon and possession of marijuana. The court affirms the marijuana conviction but reverses the three-year mandatory minimum sentence for the firearm conviction because the state presented no evidence that Redding carried the firearm on his person, as required by statute.
The three-year minimum mandatory sentence for actual possession of a firearm does not apply without evidence that the defendant carried the firearm on his person. The conviction for firearm possession is affirmed, but the three-year mandatory minimum sentence is reversed and the case is remanded for resentencing on that count. The marijuana conviction is affirmed.
[1] A three-year minimum mandatory sentence for possession of a firearm by a convicted felon pursuant to section 775.087(2)(a)1., Florida Statutes, requires evidence that the…
[2] A conviction for possession of a firearm by a convicted felon may be affirmed while a mandatory minimum sentence imposed under section 775.087(2)(a)1., Florida Statutes,…
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“we reverse the three-year minimum mandatory sentence that was imposed on Count I pursuant to section 775.087(2)(a)1., Florida Statutes (2006), because the State presented no evidence whatsoever that Redding carried the firearm on his person”
Establishes the primary holding that the mandatory minimum requires evidence the defendant carried the firearm on his person
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Join FLexlaw to unlock all legal intelligenceRedding was convicted by jury on five counts: possession of a firearm by a felon, possession of cocaine, possession of cannabis, felony fleeing or att…
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SAWAYA, J.
Sheldon Redding appeals the three-year minimum mandatory sentence imposed following his conviction on Count I, possession of a firearm by a convicted felon. Redding also challenges the judgment and sentence imposed on Count III, possession of marijuana.1 We affirm the judgment and sentence imposed on Count III without further comment, as we reject Red-ding’s argument that the trial court erred by denying his motion for judgment of acquittal on that count. We reverse the three-year minimum mandatory sentence that was imposed on Count I pursuant to section 775.087(2)(a)1., Florida Statutes (2006), because the State presented no evidence whatsoever that Redding carried the firearm on his person. See Bartley v. State, 969 So. 2d 1171 (Fla. 5th DCA 2007); Johnson v. State, 855 So. 2d 218 (Fla. 5th DCA 2003).2
Therefore, we reverse the three-year minimum mandatory sentence imposed on Count I, possession of a firearm by a convicted felon, and we remand for resentencing on that count. We affirm in all other respects. AFFIRMED in part, REVERSED in part, and REMANDED.
PALMER, C.J. and TORPY, J., concur. . Although Redding's arguments on appeal relate only to Counts I and III, Redding was found guilty as charged by the jury on all five counts of the Information, including Count I, possession of a firearm by a felon; Count II, possession of cocaine; Count III, possession of cannabis; Count IV, felony fleeing or attempting to elude; and Count V, driving while license suspended.
. In Bartley v. State, 969 So. 2d 1171, 1171 (Fla. 5th DCA 2007), this court applied our previous decision in Johnson and explained:
The defendant's conviction for possession of a firearm by a convicted felon is affirmed. However, we remand for a corrected sentence. The trial court erroneously believed the three-year mandatory minimum sentence contained in section 775.087(2)(a)l.r., Florida Statutes, for actual possession applied here. In Johnson v. State, 855 So. 2d 218 (Fla. 5th DCA 2003), this Court held that for purposes of sentencing enhancement, actual possession means that the defendant carried the firearm on his person. Because there was no evidence that the defendant had the firearm on his person, there existed no factual basis for application of the three-year mandatory minimum. See State v. Mulus, 970 So. 2d 349 (Fla. 3d DCA 2007).
Accordingly, the defendant's conviction is affirmed but the cause is remanded for re-sentencing.
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Sims v. State, 44 So. 3d 1222 (Fla. 5th DCA 2010)…by a convicted felon, this court has interpreted subsection 775.087(2)(a)l.’s use of “actually possessed” to require evidence that the defendant actually carried the firearm in order to impose the three-year minimum mandatory. See Redding v. State, 996 So. 2d 875 (Fla. 5th DCA 2008); Johnson v. State, 855 So. 2d 218 (Fla. 5th DCA 2003). Evidence of ownership without physical control, constructive possession, or possession under the principal theory is insufficient. Similarly, in Kenny v. State, 693 So. 2d 1…
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- Jama Jamar Johnson v. State, 855 So. 2d 218 (Fla. 5th DCA 2003)
- State v. Mulus, 970 So. 2d 349 (Fla. 3d DCA 2007)
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