BRANDON POTTER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court reversed the trial court's imposition of a three-year mandatory minimum sentence for possession of a firearm by a delinquent, holding that this offense is not specifically enumerated in the mandatory minimum statute.
A three-year mandatory minimum sentence under Fla. Stat. § 775.087(2)(a) does not apply to possession of a firearm by a delinquent because that offense is not specifically enumerated in the statute.
[1] A mandatory minimum sentence under Fla. …
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Join FLexlaw to unlock all legal intelligencePotter was convicted of possession of a firearm by a delinquent and sentenced to a three-year mandatory minimum. He filed a motion under Florida Rule …
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PER CURIAM.
The appellant challenges the trial court’s summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a) in which he alleges in his second claim that the imposition of a three-year mandatory minimum is improper for his offense of possession of a firearm by a delinquent. Because the appellant’s claim is facially sufficient and not refuted by record attachments, we reverse and remand for further proceedings. The remaining claims raised by the appellant are affirmed without further discussion. Under section 775.087(2)(a), Florida Statutes (2005), a mandatory minimum sentence applies to a defendant’s conviction for possession of a firearm by a convicted felon. Because the appellant was convicted of possession of a firearm by a delinquent and this offense is not specifically enumerated in the statute, it was error for the judge to use this conviction as a basis for a mandatory three-year sentence. See Johnson v. State, 677 So. 2d 71, 72 (Fla. 4th DCA 1996) (holding that armed trespass and grand theft were not specifically enumerated offenses and a three-year mandatory minimum sentence was inapplicable); Kennedy v. State, 564 So. 2d 1127, 1130 (Fla. 1st DCA 1990) (holding that conspiracy to commit robbery while armed with a firearm is not a specifically enumerated offense).
Accordingly, we reverse the appellant’s second claim and remand for the trial court to strike the three-year mandatory minimum sentence.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
BROWNING, C.J., KAHN and BENTON, JJ., concur.
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In re Standard Jury Instructions IN Crim. Cases-Report NO. 2011-03, 95 So. 3d 868 (Fla. 2012)…y not be inferred or assumed. [*875] Comment This instruction was adopted in 2012, The 3-year minimum mandatory sentence for actual possession of a firearm does not apply because this crime is not listed in § 775.087(2) Fla. Stat. Potter v. State, 997 So. 2d 1215 (Fla. 1st DCA 2008). 11.17 UNLAWFUL RESIDENCY BY A SEX OFFENDER § 775.215(2) & (3), Fla. Stat: To prove the crime of Unlawful Residency by a Sex Offender, the State must prove the following elements beyond a reasonable doubt: L (Defendant) was c…
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Williams v. State, 35 So. 3d 165 (Fla. 3d DCA 2010)…luding the murder conviction for which Williams was sentenced concur [*167] rently with the convictions in this case) were juvenile adjudications. We agree with the reasoning of the First District Court of Appeal’s recent opinion in Potter v. State, 997 So. 2d 1215, 1216 (Fla. 1st DCA 2008), that because the offense of possession of a firearm by a delinquent is not specifically listed in the 10-20-Life statute as one for which a court is authorized to impose a minimum mandatory sentence, the trial court erred…
Authorities Cited
- Kennedy v. State, 564 So. 2d 1127 (Fla. 1st DCA 1990)
- Johnson v. State, 677 So. 2d 71 (Fla. 4th DCA 1996)