LEVI ANTHONY BRADLEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Bradley was convicted by jury of armed robbery and sentenced to fifteen years imprisonment with a mandatory three-year minimum for firearm possession. On appeal, Bradley challenged whether sufficient evidence supported the finding that he possessed a firearm during the crime. The court affirmed, holding that circumstantial evidence established actual possession of the weapon.
The court affirmed the conviction and mandatory sentence, holding that circumstantial evidence was sufficient to establish actual possession. Bradley's presence at the scene in disguise, his direct act of taking the money, his flight upon police arrival, and the pistol's physical proximity and accessibility to him at the cash register collectively proved he had possession and control of the firearm.
[1] A mandatory minimum sentence for possession of a firearm during the commission of a crime requires actual, not vicarious, possession.
[2] Actual possession of a firearm during the commission of a crime can be established by circumstantial evidence.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“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).”
Establishes the legal standard that actual, not vicarious, possession of a firearm is required for mandatory minimum sentencing.
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Join FLexlaw to unlock all legal intelligenceBradley committed an armed robbery at a Big 'B' Cleaners. An off-duty police officer witnessed Bradley at the cash drawer taking money while an employ…
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WIGGINTON, Judge.
This appeal is from a final judgment and sentence adjudicating appellant, Levi An thony Bradley, guilty of the armed robbery of a Big “B” Cleaners. The final judgment was from a jury verdict finding Bradley guilty as charged. Bradley was subsequently sentenced to fifteen years in prison including the imposition of a minimum mandatory incarceration of three years based on his possession of a firearm during the commission of the crime. This Court finds no error in the proceedings below and affirms the final judgment and sentence entered by the trial court.
The final point on appeal requires this Court to clarify an aspect of Section 775.087, Florida Statutes (1981), dealing with the three year mandatory incarceration based on the possession of a firearm during the commission of certain crimes. Appellant contends that the three year mandatory minimum sentence was incorrect as there was insufficient proof that he had possession of a firearm during the commission of the crime.
Pertaining to this single point, the facts reveal that Bradley conceived and carried out this transgression solely on his own. Appellant was identified as being the robber and the jury so found. Eyewitness testimony placed Bradley at the cash drawer behind the counter in the Big “B” Cleaners. The regular employee of the cleaners was lying on the floor, and in front of the cash drawer on a high stool was a pistol. The eyewitness, an off-duty police officer who had stopped at the drive-in window of the cleaners, did not see the pistol in Bradley’s hand. The employee who was on the floor did not appear at the trial because he had missed his airplane. When the policeman emerged from his car, Bradley vaulted the counter and sped from the premises carrying with him the fruits of his crime but leaving the firearm undisturbed on the stool. The firearm upon later examination yielded no identifiable fingerprints and revealed that the serial number had been filed off.
The cases relied on by appellant are of no assistance to the issue sub judice, which is whether, under these facts and circumstances, Bradley may be found guilty of having had possession of a weapon or firearm during the commission of the robbery.
In Earnest v. State, 351 So. 2d 957 (Fla.1977), the supreme court excluded from the mandatory sentence aiders and abettors to criminal activity, holding that vicarious possession was not enough and only those persons in possession of the firearm would be subjected to the increased penalty.
A survey of those cases applying the mandatory incarceration provision of Section 775.087(2) indicates the dichotomy of actual possession, wherein the mandatory incarceration was imposed, and the vicarious possession 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 incarceration required by Section 775.087(2). However, we find no preclusion of that finding being based upon circumstantial evidence. Bradley’s presence in the Big “B” Cleaners in a mask and toboggan cap, his positive act of taking the money of the owner, as well as fleeing the scene upon entry of the police officer, belies any reasonable hypothesis of innocence. The pistol was located on the stool directly in front of the cash register from which Bradley was seen taking the money. It was physically available, readily accessible, within the reach of Bradley’s hand, capable of being used by him immediately, and well away from the employee who was at that time lying spread eagle on the floor. This demanding circumstantial evidence compels us to the single conclusion that Bradley had possession and control of and full exercise of power over the firearm, to the exclusion of all other persons. The final judgment and sentence of the lower court is affirmed.
JOANOS and THOMPSON, JJ., concur.
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Whitehead v. State, 446 So. 2d 194 (Fla. 4th DCA 1984)…Florida Statutes (1981). Brown v. State, 358 So. 2d 92 (Fla. 4th DCA), cert. denied, 364 So. 2d 881 (Fla.1978); Earnest v. State, 351 So. 2d 957 (Fla.1977). A finding of actual possession may be based upon circumstantial evidence. Bradley v. State, 413 So. 2d 1248 (Fla. 1st DCA 1982). Neither the victim, Jerabek, nor any other witness observed appellant in the possession of a firearm after leaving the scene of the robbery. Although appellant had a gun at the store, the firearm found in the vehicle had only hi…
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Mitchell v. State, 698 So. 2d 555 (Fla. 2d DCA 1997)…gun is loaded or operable, a defendant’s use of a firearm during a crime can be established even if the gun is not recovered and introduced into evidence. Circumstantial evidence can be sufficient to establish the use of a firearm. Bradley v. State, 413 So. 2d 1248 (Fla. 1st DCA 1982); T.T. v. State, 459 So. 2d 471 (Fla. 1st DCA 1984); Meyer v. State, 498 So. 2d 554 (Fla. 4th DCA 1986); Council v. State, 691 So. 2d 1192 (Fla. 4th DCA 1997). [*559] In this case, numerous witnesses testified that Mr. Mitchell co…
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Menendez v. State, 521 So. 2d 210 (Fla. 1st DCA 1988)…ustain a conviction for an enhanced felony may be established by circumstantial evidence. Similarly, circumstantial evidence of actual possession of a firearm may be used [*214] for the purpose of mandatory minimum sentencing. See Bradley v. State, 413 So. 2d 1248 (Fla. 1st DCA 1982); Whitehead v. State, 446 So. 2d 194, 196 (Fla. 4th DCA 1984). In Bradley, this court approved a three-year mandatory sentence, based upon circumstantial evidence of a defendant’s possession of a firearm during the commission of a…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Earnest v. State, 351 So. 2d 957 (Fla. 1977)
- McGOWAN v. State, 362 So. 2d 335 (Fla. 3d DCA 1978)
- Boozer v. State, 402 So. 2d 585 (Fla. 5th DCA 1981)
- Zarro v. State, 390 So. 2d 811 (Fla. 5th DCA 1980)