STATE OF FLORIDA, APPELLANT,
v.
CARNELL SESLER, APPELLEE
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The trial court erred in refusing to impose the mandatory three-year minimum sentence upon a defendant convicted of aggravated assault with a firearm.
The defendant was charged with aggravated battery, found guilty of aggravated assault with a firearm, and the court withheld adjudication. The trial c…
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SCHEB, Chief Judge.
The state contends that the trial court erred in refusing to impose the mandatory three-year minimum sentence upon Sesler under Section 775.087(2), Florida Statutes (1979). We agree.
In September of 1979, the state charged Sesler with aggravated battery. A jury found him guilty of aggravated assault with a firearm, a lesser-included offense of aggravated battery. The court withheld adjudication and ordered a presentence investigation. At the sentencing hearing, the state requested that the court sentence Ses-ler pursuant to Section 775.087(2). The court declined, explaining that because the victim had been partially at fault, it would be a “miscarriage of justice” to imprison Sesler for three years. The court then placed Sesler on five years probation. The court erred because Section 775.087(2) clearly requires a trial court to sentence a defendant convicted of aggravated assault with a firearm to a minimum of three years in prison. See D’Alessandro v. Shearer, 360 So. 2d 774 (Fla.1978); State v. Opitz, 357 So. 2d 469 (Fla.2d DCA 1978).
While we recognize the problems inherent in the uniform imposition of a minimum sentence, this area is a matter of legislative prerogative and is nondiscretionary. Accordingly, we have no alternative but to remand to the trial court with directions to vacate the prior sentence and impose sentence as required by Section 775.087(2), Florida Statutes (1979).
BOARDMAN and GRIMES, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (14 total)
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Nova v. State, 439 So. 2d 255 (Fla. 3d DCA 1983)…years in accordance with the agreement, could not be afforded him. Where an accused is convicted of a crime for which the Legislature has prescribed a mandatory sentence, a trial court is not empowered to impose any lesser sentence. State v. Sesler, 386 So. 2d 293, 294 (Fla. 2d DCA 1980); see also State v. De La Rosa, 414 So. 2d 26 (Fla. 3d DCA 1982); State v. Taylor, 411 So. 2d 993 (Fla. 4th DCA 1982). Of course, this is not to suggest that a court will condone the State’s repudiation of its agreement, see J…
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Blanton v. State, 388 So. 2d 1271 (Fla. 4th DCA 1980)…y the Sowell decision to uphold the statute. Under Sowell, the remedy of the appellant, if indeed any remedy is available as to the alleged unfairness of the mandatory sentence imposed, rests with the legislature and not the courts. State v. Sesler, 386 So. 2d 293 (Fla.2d DCA 1980). As to the issue of enhancement, it is clear that the two subsections of Section 775.087 serve two different functions. Subsection (1) provides for reclassification of a felony to a higher degree where a weapon or firearm was used…
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VAN Buren v. State, 500 So. 2d 732 (Fla. 2d DCA 1987)…exists an obligation to correct a sentence to comply with applicable statutory provisions, even if the service of the original sentence has already begun and the sentence as corrected would be more onerous. Llerena. For example, in State v. Sesler, 386 So. 2d 293 (Fla. 2d DCA 1980), we entertained an appeal by the state from a sentence of probation imposed for the offense of aggravated assault with a firearm, in violation of section 775.087 Florida Statutes (1979), which requires a three-year prison sentence…
Previewing 3 of 14 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- D'Alessandro v. Shearer, 360 So. 2d 774 (Fla. 1978)
- State v. Opitz, 357 So. 2d 469 (Fla. 2d DCA 1978)