STATE OF FLORIDA, APPELLANT,
v.
ALAN BRUCE PILCHER, APPELLEE
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The court held that the mandatory minimum sentence statute requires possession of a firearm at the time of the burglary, not merely stealing one during the commission of the offense.
The state appealed an alleged illegal sentence, arguing the appellee should have received a mandatory minimum sentence for burglary involving a stolen…
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DAUKSCH, Judge.
This is a proper appeal by the state from an alleged illegal sentence. Rule 9.140(c)(1)(I). The state says the sentence is illegal because the judge refused to require appellee to serve a minimum of three years. See, § 775.087, Fla.Stat. (1981). The allegations and proof against appellee regard a burglary where he stole a firearm along with other items.
This case is novel and is not governed by Mills v. State, 400 So. 2d 516 (Fla. 5th DCA 1981). In Mills the question was whether one is guilty of armed burglary if he unlawfully enters a structure and steals a gun and its projectiles. We said yes because the statute provides that it is a higher form of burglary if one “[i]s armed, or arms himself within such structure.” See, § 810.02(2)(b), Fla.Stat. (1981). The statute is specific in its wording — if one arms himself after committing a burglary but while “within such structure” then he is guilty of the armed burglary as opposed to the lesser burglary.
Here the statute is different. Section 775.087(2) provides in pertinent part:
“Any person who is convicted of: ... burglary ... and who had in his possession a ‘firearm,’ ... shall be sentenced to a minimum ... of 3 calendar years.”
(emphasis added).
In order to fall within the mandatory minimum statute the defendant must have had the gun in his possession when he committed the burglary. A burglary is committed and is complete when the entering upon the premises occurs. If a person enters, or remains in, a structure with the intent to commit an offense then the crime has occurred. See, § 810.02(1), Fla.Stat. (1981); Estevez v. State, 313 So. 2d 692 (Fla.1975) (see especially Adkins, C.J., concurring at 695).
The trial court was correct in not imposing the mandatory minimum sentence.
AFFIRMED.
COBB and SHARP, JJ., concur.
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Williams v. State, 517 So. 2d 681 (Fla. 1988)…BARKETT, Justice. We have for review Williams v. State, 502 So. 2d 1307 (Fla. 3d DCA 1987), based on express and direct conflict with State v. Pilcher, 443 So. 2d 366 (Fla. 5th DCA 1983). We have jurisdiction. Art. V, § 3(b)(3), Fla. Const. The issue presented is whether the three-year mandatory minimum required by section 775.087(2), Florida Statutes (1985),1 applies to a burglary conviction if the defend [*682…
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State v. Jones, 536 So. 2d 1161 (Fla. 5th DCA 1988)…rifles and one handgun in the home, and that defendant took physical possession of the handgun and one rifle and carried them out of the home. In rejecting the imposition of the mandatory minimum sentence the trial court relied on State v. Pilcher, 443 So. 2d 366 (Fla.5th DCA 1983) which held that the mandatory minimum sentence could not be imposed when the burglar was not armed when he entered the structure. However, since the sentence was imposed here, Pilcher has been expressly overruled by Williams v. St…
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State v. Brown, 496 So. 2d 194 (Fla. 3d DCA 1986)…urglar who steals gun from premises is guilty of armed burglary, defined in section 810.02(2)(b) as occurring if offender “is armed or arms himself within ... structure”), pet. for review denied, 408 So. 2d 1094 (Fla.1981); compare State v. Pilcher, 443 So. 2d 366 (Fla. 5th DCA 1983) (burglar who steals firearm did not have “gun in his possession when burglary was committed” under section 775.087(2)). For this reason, the order is reversed with directions to reinstate the charge of armed robbery contained in…
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
- Ciro Estevez v. State, 313 So. 2d 692 (Fla. 1975)
- Mills v. State, 400 So. 2d 516 (Fla. 5th DCA 1981)