STANLEY BOOZER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant's sentence for robbery with a firearm was vacated because the split sentence was illegal and the mandatory minimum firearm enhancement did not apply where appellant lacked actual possession of the weapon.
A split sentence combining prison and probation is illegal, and the mandatory minimum firearm enhancement under section 775.087 does not apply when the defendant lacked actual possession of the firearm.
[1] Actual possession of a firearm is a prerequisite to applying the mandatory minimum sentencing enhancement under section 775.087, Florida Statutes.
[2] A split sentence imposing both a prison term and probation is illegal.
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Join FLexlaw to unlock all legal intelligenceAppellant was convicted of robbery with a firearm involving a co-defendant who possessed the gun, but there was no evidence appellant ever possessed o…
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DAUKSCH, Chief Judge.
The appellant appeals from a sentence entered upon a jury verdict of guilty for robbery with a firearm. §§ 812.13(2)(b) and 775.087(2), Fla.Stat. (1979). This sentence ordered the appellant to be committed to the Department of Offender Rehabilitation for a term of thirty (30) years, fifteen (15) years to be served in prison and fifteen (15) years of probation. Such a split sentence is illegal. Villery v. The Florida Parole and Probation Commission, 396 So. 2d 1107 (Fla.1981).
The trial court also erred in sentencing the appellant pursuant to the provisions of section 775.087(2), Florida Statutes (1979). Although the robbery involved a co-defendant with a gun, there was no evidence that appellant 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 sentence is vacated and the cause remanded.
FRANK D. UPCHURCH, Jr. and SHARP, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Bentley v. State, 411 So. 2d 1361 (Fla. 5th DCA 1982)…97 (Fla. 3d DCA 1977); Kominskey v. State, 330 So. 2d 800 (Fla. 1st DCA 1976). .The ejusdem generis rule. . See generally 26 Fla.Jur. Public Officers § 188 (1959); 23 Fla.Jur.2d Evidence and Witness §§ 91, 93 (1980). . See, e.g., Boozer v. State, 402 So. 2d 585 (Fla. 5th DCA 1981); Leftwich v. State, 399 So. 2d 496 (Fla. 5th DCA 1981). .See Williams v. State, 405 So. 2d 436 (Fla. 1st DCA 1981).…
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Bradley v. State, 413 So. 2d 1248 (Fla. 1st DCA 1982)…f 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 incarceration required by Section 775.087(2). However, we find no pr…
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Lester v. State, 458 So. 2d 1194 (Fla. 1st DCA 1984)…appellant’s accomplice had possession of the weapon during the commission of the robbery. Imposition of the mandatory minimum three year sentences for possession of the gun was erroneous. Earnest v. State, 351 So. 2d 957 (Fla.1977); Boozer v. State, 402 So. 2d 585 (Fla. 5th DCA 1981). The judgment and sentence are REVERSED and the case REMANDED for a new trial. JOANOS and WIGGINTON, JJ., concur.…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Villery v. The Fla. Parole & Prob. Comm'n, 396 So. 2d 1107 (Fla. 1980)
- Earnest v. State, 351 So. 2d 957 (Fla. 1977)
- McGOWAN v. State, 362 So. 2d 335 (Fla. 3d DCA 1978)
- Freeman v. State, 382 So. 2d 1307 (Fla. 3d DCA 1980)
- Wood v. State, 399 So. 2d 108 (Fla. 1st DCA 1981)
- Johnson v. State, 399 So. 2d 108 (Fla. 1st DCA 1981)