CLEVELAND B. WILLIAMS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Cleveland Williams was convicted of firearm possession by a convicted felon and sentenced to five years with a mandatory three-year minimum. The appellate court affirmed the conviction and five-year sentence but reversed the mandatory minimum term because the State presented no evidence that Williams actually carried the firearm on his person, which is required to impose the enhancement.
The court affirmed the conviction and five-year sentence but reversed the mandatory minimum portion. The court held that although the jury found actual possession, the State's failure to present evidence that Williams carried the firearm on his person meant the State did not satisfy the requirement for imposing the mandatory minimum enhancement.
[1] A mandatory minimum sentence for possessing a firearm during the commission of a crime requires proof that the defendant actually possessed the firearm, meaning it was ca…
[2] A defendant's argument at sentencing regarding the propriety of a mandatory minimum sentence is sufficient to preserve the issue for appellate review.
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Establishes that the State bears the burden of proving actual possession to invoke the mandatory minimum enhancement
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Join FLexlaw to unlock all legal intelligenceCleveland Williams was found guilty by jury of possession of a firearm by a convicted felon under Florida Statutes section 790.28(1). The jury made a …
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WALLACE, Judge.
Cleveland B. Williams challenges the judgment and sentence imposed on him after a jury found him guilty of possession of a firearm by a convicted felon, a violation of section 790.28(1), Florida Statutes (2005).1 The jury’s verdict included a finding that Mr. Williams was in actual possession of the firearm. The trial court sentenced Mr. Williams to five years in the state prison with a three-year mandatory minimum term in accordance with section 775.087(2)(a)(l), Florida Statutes (2005). Because the State did not present any evidence that Mr. Williams was in actual possession of the firearm, the trial court erred in imposing the three-year mandatory minimum term.
Section 775.087(2)(a)(l) “enhances the sentence of a defendant who ‘actually possessed’ a firearm during the commission of the crime.” Bundrage v. State, 814 So. 2d 1133, 1134 (Fla. 2d DCA 2002). But in order for the enhancement to apply, the State must prove actual possession. Id. In this context, “actual possession” means that the firearm must be carried on the person. See Washington v. State, 876 So. 2d 1242, 1243 (Fla. 2d DCA 2004) (citing Johnson v. State, 855 So. 2d 218, 222 (Fla. 5th DCA 2003)). Although the jury made a specific finding that Mr. Williams was in actual possession of the firearm, the State did not present any evidence demonstrating that Mr. Williams carried the firearm on his person. On rebriefing, the State concedes that “the evidence on the record does not support imposition of the minimum mandatory sentence.”
Nevertheless, the State argues that the issue of the propriety of the mandatory minimum sentence was not preserved because Mr. Williams did not file a motion under Florida Rule of Criminal Procedure 3.800(b)(2). We disagree. The argument made by Mr. Williams’ trial counsel at sentencing was sufficient to preserve the error for appellate review. See Fla. R.App. P. 9.140(e)(1).
Accordingly, we affirm Mr. Williams’ judgment and five-year sentence, reverse the mandatory minimum portion of the sentence, and remand this case for the trial court to strike the mandatory minimum designation from the sentence. Mr. Williams need not be present when the trial court makes the necessary correction to the sentence. See Washington, 876 So. 2d at 1248.
Affirmed in part, reversed in part, and remanded.
CASANUEVA and LaROSE, JJ., Concur. . Mr. Williams' appellate counsel originally filed a brief in accordance with Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Because we determined that an issue of potential merit existed concerning the imposition of a mandatory minimum sentence on Mr. Williams under section 775.087(2)(a)(l), Florida Statutes (2005), we ordered supplemental briefing in accordance with Penson v. Ohio, 488 U.S. 75, 109 S.Ct. 346, 102 L.Ed.2d 300 (1988). We also ordered Mr. Williams’ appellate counsel to address an apparent inconsistency in the judgment. Upon review of the supplemental briefs, we agree with Mr. Williams and the State that there is no inconsistency in the judgment.
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Bolden v. State, 4 So. 3d 788 (Fla. 1st DCA 2009)…irm the judgment and life sentence but strike the mandatory minimum portion of the sentence and remand for the trial court to correct the sentence. Appellant need not be present when the trial court makes the necessary correction. Williams v. State, 997 So. 2d 486 (Fla. 2d DCA 2008). WOLF, BENTON, and BROWNING, JJ., concur.…
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Gallentine v. State, 55 So. 3d 728 (Fla. 2d DCA 2011)…ear mandatory minimum sentence under section 775.087(2)(a)(l)(r), Florida Statutes (2008), for possession of a firearm by a convicted felon. The evidence failed to show that Gallentine carried the firearm on his person. See, e.g., Williams v. State, 997 So. 2d 486 (Fla. 2d DCA 2008); Washington v. State, 876 So. 2d 1242 (Fla. 2d DCA 2004); Johnson v. State, 855 So. 2d 218 (Fla. 5th DCA 2003); see also State v. Mulus, 970 So. 2d 349 (Fla. 3d DCA 2007) (reversing mandatory minimum term when firearm was discover…
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Fredrick J. Allen v. State, 145 So. 3d 888 (Fla. 2d DCA 2014)…PER CURIAM. Affirmed. See Tucker v. State, 726 So. 2d 768 (Fla.1999); Leeman v. State, 357 So. 2d 703 (Fla.1978); Williams v. State, 997 So. 2d 486 (Fla. 2d DCA 2008); Daniel v. State, 935 So. 2d 1240 (Fla. 2d DCA 2006); Bizzell v. State, 912 So. 2d 386 (Fla. 2d DCA 2005); Pitts v. State, 832 So. 2d 260 (Fla. 2d DCA 2002); Mosely v. State, 688 So. 2d 999 (Fla. 2d DCA 1997); Desmond v. State, 57…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- Penson v. Ohio, 488 U.S. 75 (U.S. 1988)
- Bundrage v. State, 814 So. 2d 1133 (Fla. 2d DCA 2002)
- Jama Jamar Johnson v. State, 855 So. 2d 218 (Fla. 5th DCA 2003)
- Washington v. State, 876 So. 2d 1242 (Fla. 2d DCA 2004)