MICHAEL FINLEY TINDALL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Michael Tindall appeals his second-degree murder sentence, challenging whether a three-year mandatory minimum under Florida's firearm enhancement statute can be imposed without a specific jury finding of firearm possession. The Fifth District Court of Appeal affirms the sentence, holding that where the allegations and proof lead to an inescapable conclusion that a firearm was used, no special verdict finding is required.
Where a defendant is charged with a crime that requires firearm possession, or where the allegations and proof lead to an inescapable conclusion that a firearm was possessed during the crime, a jury need only find the defendant guilty of the crime or an included lesser offense; no special verdict finding firearm possession is required to impose the three-year mandatory minimum. However, if there is no such inescapable conclusion, a special verdict is required.
[1] A mandatory minimum sentence for firearm possession may be imposed when the jury's verdict of guilt on the underlying offense, combined with the allegations and proof, le…
[2] If the inescapable conclusion of firearm possession during the commission of a crime is not present, a special verdict is required to impose a mandatory minimum sentence…
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Join FLexlaw to unlock all legal intelligence“whether a defendant can be sentenced to the three year mandatory minimum under Section 775.087(2), Florida Statutes (1981) without the specific finding by a jury that the defendant had a firearm in his possession when he committed the crime”
States the core legal question presented on appeal
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Join FLexlaw to unlock all legal intelligenceTindall murdered Sherill Crawford Johns with a rifle. He was charged with first-degree murder but convicted of second-degree murder. There is no quest…
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DAUKSCH, Judge.
This is an appeal from a sentence in a second degree murder case. We have reviewed and affirmed the conviction. See, Tindall v. State, 415 So. 2d 1390 (Fla. 5th DCA 1982).
The question now on appeal is whether a defendant can be sentenced to the three year mandatory minimum under Section 775.087(2), Florida Statutes (1981) without the specific finding by a jury that the defendant had a firearm in his possession when he committed the crime.
The facts are that the appellant murdered Sherill Crawford Johns with a rifle. He was charged with first degree murder and convicted of second degree murder. There is absolutely no question that the victim died as a result of Tindall having shot her with a firearm. The jury was not advised that the defendant was facing a three year mandatory minimum sentence1 and the jury was not given an interrogatory verdict to enable it to find specifically that a firearm was used.
We have considered Overfelt v. State, 434 So. 2d 945 (Fla. 4th DCA 1983) and we disagree with it. Thus, we certify that we are in conflict with its holding. Overfelt holds:
that before a trial court may enhance a defendant’s sentence or apply the mandatory minimum sentence for use of a firearm, the jury must make a finding that the defendant committed the crime while using a firearm either by finding him guilty of a crime which involves a firearm or by answering a specific question on a special verdict form so indicating. We reject the State’s argument of waiver to the effect that the defendant had the burden of securing such findings from the jury.
434 So. 2d at 948.
It is our opinion, and we hold, that where a defendant is charged with a crime which requires the possession of a firearm to commit the crime, or where the allegations and the proof lead to the inescapable conclusion that the defendant possessed a firearm during the commission of the crime, then the jury need only find the defendant guilty of the crime, or of an included lesser offense which also has the requisite allegations and proof to substantiate it, and the jury need not render a specific verdict finding such firearm possession in order for the three year minimum mandatory sentence under Section 775.087(2) to be imposed. If there is not such an inescapable conclusion, then a special verdict is required.
The sentence is affirmed.
AFFIRMED.
SHARP, J., concurs.
COBB, J., dissents with opinion.
. No request or objection in that regard was made. See, Torrence v. State, 440 F. 2d 392 (Fla. 5th DCA, 1983).
COBB, Judge,
dissenting.
I dissent on the ground that only a jury, in the absence of waiver of a jury trial, can try the factual issues in a criminal case. The issue is not the weight of the evidence; it is defendant’s right to a trial by jury. See Overfelt v. State, 434 So. 2d 945 (Fla. 4th DCA 1983) and Streeter v. State, 416 So. 2d 1203 (Fla. 3d DCA 1982). The burden was on the state, not the defense, to obtain the interrogatory verdict referred to in the majority opinion. It failed to do so. I would reverse the imposition of the three-year mandatory sentence.
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Citator
Cited By
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State v. Overfelt, 457 So. 2d 1385 (Fla. 1984)…48. See also Hough v. State, 448 So. 2d 628 (Fla. 5th DCA 1984); Smith v. State, 445 So. 2d 1050 (Fla. 1st DCA 1984); Streeter v. State, 416 So. 2d 1203 (Fla. 3d DCA 1982); Bell v. State, 394 So. 2d 570 (Fla. 5th DCA 1981). But see Tindall v. State, 443 So. 2d 362 (Fla. 5th DCA 1983). The question of whether an accused actually possessed a firearm while committing a felony is a factual matter properly decided by the jury. Although a trial judge may make certain findings on matters not associated with the crim…1 / 2
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Tondrick Hough v. State, 448 So. 2d 628 (Fla. 5th DCA 1984)…s and proof lead to the inescapable conclusion that the defendant possessed a firearm during the commission of the crime, then the jury must specifically find that defendant possessed the firearm during the commission of the crime. Tindall v. State, 443 So. 2d 362 (Fla. 5th DCA 1983). Although the information charges appellant with the commission of the robbery while carrying a firearm, the State’s proof at trial was very much in dispute as to which of the three participants actually had possession of the gun…
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Henry v. State, 483 So. 2d 860 (Fla. 5th DCA 1986)…ore that can lawfully be done, there must be a specific finding by the jury that a firearm was possessed during the commission of the manslaughter. State v. Overfelt, 457 So. 2d 1385 (Fla.1984), which cites and implicitly overrules Tindall v. State, 443 So. 2d 362 (Fla. 5th DCA 1983). The third point on appeal involves a departure sentence under the guidelines. Because we must remand this case for resen-tencing under point two we express no opinion regarding the departure. The conviction is affirmed, the se…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Murrell Streeter v. State, 416 So. 2d 1203 (Fla. 3d DCA 1982)
- Overfelt v. State, 434 So. 2d 945 (Fla. 4th DCA 1983)