MICHAEL AIKENS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that mandatory minimum sentences for possession of a firearm can be imposed even when a firearm is an essential element of the underlying crime.
[1] Mandatory minimum sentences for possession of a firearm may be imposed even when a firearm is an essential element of the underlying crime.
[2] Statutory provisions authorizing sentence enhancement for firearm possession and mandating minimum sentences for firearm use serve distinct functions and are not necessar…
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Join FLexlaw to unlock all legal intelligenceAikens was convicted of armed robbery and aggravated assault, crimes for which a firearm is an essential element. He received mandatory minimum senten…
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WIGGINTON, Judge.
This appeal is from the order of the trial court denying Aikens’ Rule 3.850 motion for post-conviction relief. We affirm as to all three points raised on appeal; however, our affirmance as to the third point merits some discussion.
Aikens was convicted of armed robbery and aggravated assault against separate victims, in violation of Sections 812.13(2)(a) and 784.021, Florida Statutes. He was sentenced to twenty years for the armed robbery count and to five years for the aggravated assault count, those sentences to run consecutively. Aikens also received, under Section 775.087(2), Florida Statutes, mandatory minimum three year sentences for both counts, those sentences to run consecutively. In his motion, relying on Skipper v. State, 400 So. 2d 797 (Fla. 1st DCA 1981), Aikens argues the trial court could not “enhance” his sentences by imposing the mandatory minimum sentences for possession of a firearm, where a firearm, as here, was an essential element of the crime or crimes charged. Aikens’ argument assumes that paragraphs (1) (authorizing enhancement of a penalty for possession of a firearm unless such forms an essential element of the crime charged) and (2) of Section 775.087 are to be read in pari materia. However, this Court recently receded from Skipper and recognized that paragraphs (1) and (2) serve different functions. See Vause v. State, 424 So. 2d 52 (Fla 1st DCA 1982).
Aikens was convicted of armed robbery and aggravated assault, both of which fall within the ambit of Section 775.087(2); therefore, the trial court properly imposed the consecutive mandatory sentences. Fa use; Blanton v. State, 388 So. 2d 1271 (Fla. 4th DCA 1980); Bradley v. State, 413 So. 2d 1248 (Fla. 1st DCA 1982); State v. Lopez, 408 So. 2d 744 (Fla. 3d DCA 1982); State v. De La Rosa, 414 So. 2d 26 (Fla. 3d DCA 1982); Kelly v. State, 414 So. 2d 1117 (Fla. 4th DCA 1982); Palmer v. State, 416 So. 2d 878 (Fla. 4th DCA 1982); D’Alessandro v. Shearer, 360 So. 2d 774 (Fla.1978).
The trial court’s denial of Aikens’ Rule 3.850 motion is AFFIRMED.
MILLS and ERVIN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Whitehead, 472 So. 2d 730 (Fla. 1985)…efendant will serve at least three years of his sentence, whatever its length, before being considered for parole if he uses a firearm in committing one of the listed felonies. See Perez v. State, 431 So. 2d 274 (Fla. 5th DCA 1983); Aikens v. State, 423 So. 2d 593 (Fla. 1st DCA 1982); Blanton v. State, 388 So. 2d 1271 (Fla. 4th DCA 1980). Another indication that the statutes are not mutually exclusive is shown by the fact that subsections (1) and (2) are not necessarily dealing with the same crimes. Subsecti…
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Brown v. State, 460 So. 2d 546 (Fla. 1st DCA 1984)…ssing a firearm. 388 So. 2d at 1274. That distinction has been adopted by this court in Vause v. State, 424 So. 2d 52, 56 (Fla. 1st DCA 1982) and by the fifth district in Perez v. State, 431 So. 2d 274 (Fla. 5th DCA 1983). See also Aikens v. State, 423 So. 2d 593 (Fla. 1st DCA 1982) (rejecting appellant’s argument that subsections (1) and (2) are to be read in pari materia). In addition to the distinction noted in Blanton v. State, supra, it would appear that the legislature did not intend the two subsectio…
Authorities Cited
- Daniels v. State, 414 So. 2d 1117 (Fla. 4th DCA 1982)
- Blanton v. State, 388 So. 2d 1271 (Fla. 4th DCA 1980)
- D'Alessandro v. Shearer, 360 So. 2d 774 (Fla. 1978)
- Skipper v. State, 400 So. 2d 797 (Fla. 1st DCA 1981)
- Palmer v. State, 416 So. 2d 878 (Fla. 4th DCA 1982)
- Bradley v. State, 413 So. 2d 1248 (Fla. 1st DCA 1982)
- Vause v. State, 424 So. 2d 52 (Fla. 1st DCA 1982)
- State v. Lopez, 408 So. 2d 744 (Fla. 3d DCA 1982)
- City OF Miami v. The Bd. OF Trs. OF the Miami City Emps'. Ret. Sys., 414 So. 2d 26 (Fla. 3d DCA 1982)