TONDRICK HOUGH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Appellant Hough was convicted of armed robbery committed with others, and the trial court imposed a three-year mandatory minimum sentence. The court held that while Hough could be guilty of armed robbery as an accomplice without possessing the firearm himself, the mandatory minimum sentence requires a specific jury finding of actual firearm possession, which was not made here.
A defendant may be found guilty of armed robbery as a principal even without actual possession of the firearm if an accomplice possessed it, but imposition of the three-year mandatory minimum sentence requires a specific jury finding of the defendant's actual, not vicarious, possession of the firearm during the crime.
[1] All participants in a robbery are guilty as principals if any one of them carried a firearm during the commission of the crime.
[2] Imposition of a statutory minimum mandatory sentence for using a firearm in a felony requires a finding of actual, as distinguished from vicarious, possession of the fire…
Previewing 2 of 4 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“the imposition of the mandatory minimum sentence requires that defendant have had actual, as distinguished from vicarious, possession of the firearm during the robbery”
Establishes the core distinction between guilt for armed robbery (which may be vicarious through accomplice liability) and sentencing under the mandatory minimum (which requires actual possession)
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceHough participated in an armed robbery with two other individuals using a single firearm. The evidence at trial was disputed as to which of the three …
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Principal Liability cases and more on FLexlaw
ORFINGER, Chief Judge.
The issue on appeal is whether the statutory three-year minimum penalty provided for in section 775.087(2)(b) Florida Statutes (1981), may be imposed on a defendant found guilty of an armed robbery participated in with others, in the absence of a finding by the jury that the defendant had the firearm in his actual possession.
There was sufficient evidence presented at trial to find appellant guilty of the crime charged because, despite a dispute in the evidence as to which of the three participants actually had possession of the single gun employed in the robbery, if any one of them carried the firearm during the commission of the crime, all of them are guilty as principals under section 777.011, Florida Statutes (1981). See § 812.13(2)(a), Fla.Stat. (1981).
This is not to say, however, that the three-year minimum mandatory sentence may be imposed merely on the basis of the finding of guilt, because the imposition of the mandatory minimum sentence requires that defendant have had actual, as distinguished from vicarious, possession of the firearm during the robbery. Earnest v. State, 351 So. 2d 957 (Fla.1977). This court has previously held that unless the crime charged is such as requires actual possession of a firearm to commit the crime or unless the allegations 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 at the time the robbery was committed. Because a finding of guilt of armed robbery in a fact situation such as the one before us does not necessarily require a finding that defendant actually possessed the gun, a special finding by the jury to that effect was required before the minimum mandatory sentence could be imposed.
Because the jury was not requested to make such finding and because the sentencing error was fundamental (Reynolds v. State, 429 So. 2d 1331 (Fla. 5th DCA 1983)) even in the absence of objection below, we are compelled to set aside the three year minimum mandatory sentence. In all other respects, the judgment and sentence are affirmed.
AFFIRMED in part and REVERSED in part.
SHARP and COWART, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (19 total)
-
State v. Overfelt, 457 So. 2d 1385 (Fla. 1984)…g 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 of a special verdict form so indicating.” 434 So. 2d at 948. 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 que…
-
Freeny v. State, 621 So. 2d 505 (Fla. 5th DCA 1993)…3 So. 2d 1106 (Fla. 2d DCA 1991); Belcher v. State, 550 So. 2d 1185 (Fla. 5th DCA 1989); Willingham v. State, 541 So. 2d 1240 (Fla. 2d DCA), rev. denied, 548 So. 2d 663 (Fla.1989); State v. Jones, 536 So. 2d 1161 (Fla. 5th DCA 1988); Hough v. State, 448 So. 2d 628 (Fla. 5th DCA 1984). In some cases where the information charges a defendant with committing a crime while armed with a firearm, and the jury finds the defendant guilty as charged, there may be a sufficient basis for the mandatory sentence. Jones.…1 / 2
-
State v. Jones, 536 So. 2d 1161 (Fla. 5th DCA 1988)…correct. There was no specific finding by the jury that appellee personally, as opposed to vicariously, possessed the firearm. Vicarious possession is sufficient to convict but insufficient to warrant the mandatory minimum sentence. Hough v. State, 448 So. 2d 628 (Fla. 5th DCA 1984).…1 / 2
Previewing 3 of 19 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)
- Reynolds v. State, 429 So. 2d 1331 (Fla. 5th DCA 1983)
- Tindall v. State, 443 So. 2d 362 (Fla. 5th DCA 1983)