ALBERT ZARRO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the evidence was sufficient to sustain the robbery conviction, but the mandatory minimum sentence was improper because the defendant did not have actual possession of the firearm.
The defendant was convicted of robbery with a deadly weapon. His accomplice possessed the firearm, but the defendant did not.…
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SHARP, Judge.
Zarro appeals his judgment and sentence after being convicted of robbery with a deadly weapon. He was sentenced to 15 years with a requirement that he serve a mandatory minimum sentence of 3 years pursuant to section 775.087, Florida Statutes (1979).1
We reject Zarro’s contention that the evidence at trial was insufficient to sustain his conviction. The evidence showed that Zarro and an accomplice robbed one store employee while another accomplice robbed the pharmacist. The three men joined each other in the middle of the store and ran out together. This evidence was sufficient to uphold the jury verdict and the judgment of guilty is affirmed.
However the requirement that Zarro serve a 3 year mandatory minimum sentence must be reversed. Section 775.-087, Florida Statutes (1979) requires the imposition of the mandatory minimum sentence for possession of a firearm during the commission of certain enumerated crimes including robbery. For section 775.087 to apply, the defendant must have a firearm in his actual, not vicarious possession. Earnest v. State, 351 So. 2d 957 (Fla.1977); Arthur v. State, 351 So. 2d 60 (Fla. 4th DCA 1977). Zarro’s accomplice was carrying a firearm, but Zarro was not. Because the firearm was not in Zarro’s possession section 775.087 is not applicable. This cause is remanded to the trial court for resentencing in accordance with this opinion.
AFFIRMED in part and REVERSED in part and REMANDED.
DAUKSCH, C. J., and ORFINGER, J., concur. . Section 775.087 states, in pertinent part:
(2) Any person who is convicted of: (a) Any ... robbery ... Who had in his possession a “firearm,” ... shall be sentenced to a minimum term of imprisonment of 3 calendar years.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Bradley v. State, 413 So. 2d 1248 (Fla. 1st DCA 1982)…session wherein the party challenging the applicability of the statute was in concert with others but whose participation did not include the possession of a weapon or firearm. See McGowan v. State, 362 So. 2d 335 (Fla. 3d DCA 1978), Zarro v. State, 390 So. 2d 811 (Fla. 5th DCA 1980), and Boozer v. State, 402 So. 2d 585 (Fla. 5th DCA 1981). It is clear that the tests set forth in Earnest and McGowan require actual and not vicarious possession be attained before triggering the three year mandatory incarcerati…
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Marshall v. State, 421 So. 2d 714 (Fla. 3d DCA 1982)…been able to discover, a single case which mandates this result. No illegality occurs where, as here, a defendant is convicted of an armed felony even though he is not the so-called “trigger-man” during a criminal episode. See, e.g., Zarro v. State, 390 So. 2d 811 (Fla. 5th DCA 1980) (where defendant’s accomplice, but not defendant, carried a firearm during robbery, defendant properly convicted of robbery with a deadly weapon, but imposition of mandatory minimum sentence for possession of a firearm during com…
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McRAE v. State, 394 So. 2d 217 (Fla. 5th DCA 1981)…sentence pursuant to section 775.087(2), Florida Statutes (1979), is stricken because it is clear from the evidence that defendant had only vicarious, not actual possession of the firearm. Earnest v. State, 351 So. 2d 957 (Fla.1977); Zarro v. State, 390 So. 2d 811 (Fla. 5th DCA 1980), [1980 FLW 2268]. AFFIRMED as modified. DAUKSCH, C. J., and COWART, J., concur.…
Authorities Cited
- Earnest v. State, 351 So. 2d 957 (Fla. 1977)
- Arthur v. State, 351 So. 2d 60 (Fla. 4th DCA 1977)