JOSEPH JOHNSON, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Johnson was convicted of aggravated assault and armed robbery and sentenced to an indeterminate sentence of not less than three years nor more than life. The appellate court affirmed his conviction but reversed and remanded his sentence because the evidence failed to identify him as the actual possessor of the firearm, making the three-year mandatory minimum inapplicable under the aider and abettor theory on which he was convicted.
The three-year mandatory minimum sentence for use of a firearm does not apply to a defendant convicted of armed robbery who did not actually possess the firearm, even when convicted under an aider and abettor theory. Although the evidence was sufficient to support the crimes charged, neither the evidence nor the verdict supports imposition of the mandatory minimum.
[1] A mandatory minimum sentence for firearm use does not apply to a defendant convicted of armed robbery based solely on an aider and abettor theory when the evidence does n…
[2] A sentence must be vacated and remanded for resentencing when the record is unclear as to whether the trial court imposed an indeterminate sentence or a life sentence wit…
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Join FLexlaw to unlock all legal intelligence“the three-year mandatory minimum term of imprisonment did not apply to persons convicted of armed robbery who had only vicarious possession of the firearm”
Establishes the legal principle from Earnest that vicarious possession does not trigger the mandatory minimum
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Join FLexlaw to unlock all legal intelligenceJohnson was convicted of aggravated assault and armed robbery as an aider and abettor. Evidence at trial showed that one of two robbers possessed a fi…
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PER CURIAM.
Johnson appeals his judgment and sentence following a conviction of aggravated assault and armed robbery. Appellant’s first point is without merit and we affirm. However, his second point, alleging that the trial court erred in sentencing him to an indeterminate sentence of not less than three years nor more than life and in indicating that the three-year mandatory minimum sentence applied for use of a firearm, requires reversal.
The evidence at trial indicated one of two robbers actually possessed a firearm.
The evidence wholly failed to identify Johnson as the robber possessing the gun.
The jury was instructed on an aider and abettor theory and subsequently returned a verdict of guilty as charged. In Earnest v. State, 351 So. 2d 957 (Fla.1977), the court held that the three-year mandatory minimum term of imprisonment did not apply to persons convicted of armed robbery who had only vicarious possession of the firearm, construing Section 775.087(2), Florida Statutes (1975).
Séction 775.087(2), Florida Statutes (1979), applicable here, has identical provisions. Although this case is factually distinguishable from Earnest in that the evidence at trial affirmatively showed Earnest had only vicarious possession, we think the principle of Earnest applies in this factual situation where no evidence was presented showing appellant actually possessed the firearm and the jury was instructed on an aider and abettor theory.
Thus, under these circumstances, although the evidence was clearly sufficient to support the crimes charged, neither the evidence nor the verdict support imposition of the three-year mandatory minimum sentence.
Finally, after reviewing the sentencing hearing and the sentencing papers, it is not clear to us whether the judge really imposed an indeterminate sentence or a life sentence with the three-year mandatory minimum to apply. See Section 921.18, Florida Statutes (1979).
Therefore, appellant’s sentence is vacated and the case remanded to the trial court for an appropriate sentence in accordance with this opinion.
Judgment affirmed; sentence vacated and case remanded.
ERVIN, J., and LILES, WOODIE A. (Retired) and PEARSON, TILLMAN (Retired), Associate Judges, concur.
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Boozer v. State, 402 So. 2d 585 (Fla. 5th DCA 1981)…lant ever had possession or used this firearm during the commission of the offense. Actual possession of a firearm is required to bring a defendant within the purview of section 775.087. Earnest v. State, 351 So. 2d 957 (Fla.1977); Johnson v. State, 399 So. 2d 108 (Fla. 1st DCA 1981); [1981 F.L.W. 1273]; McGowan v. State, 362 So. 2d 335 (Fla. 3d DCA 1978), overruled on other grounds, Freeman v. State, 382 So. 2d 1307 (Fla. 3d DCA 1980). The provisions of section 775.087 do not apply to this appellant. The s…
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Plant v. State, 407 So. 2d 966 (Fla. 1st DCA 1981)…tes, money, identification, and a subsequent confession as products of an unlawful stop, which motion was denied. He also challenged the confession as involuntary but waived that issue later, Brown v. State, 376 So. 2d 382 (Fla.1979); Wood v. State, 399 So. 2d 108 (Fla. 1st DCA 1981). Plant, unlike his co-defendant, Thomas, pled nolo reserving the right to appeal the suppression issue. The issue here is whether there was probable cause for the stopping of the automobile by Officer Mundy. The appellant relie…
Authorities Cited
- Earnest v. State, 351 So. 2d 957 (Fla. 1977)