SYE CHRISTOPHER JENKINS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant Jenkins appealed his conviction for robbery and challenged aspects of his 75-year sentence, including the trial court's retention of jurisdiction over one-third of the sentence and imposition of a three-year mandatory minimum. The Fourth District Court of Appeal affirmed the conviction but modified the sentence to remove the mandatory minimum term because the weapon was not directly possessed by the appellant.
The conviction is affirmed. The trial court's retention of jurisdiction over one-third of the sentence is upheld as the point was not properly preserved for appeal. The sentence is modified to delete the three-year mandatory minimum because Florida law requires direct possession of the weapon by the individual receiving the mandatory sentence, not vicarious possession through co-perpetrators.
[1] A defendant may be found guilty of robbery with a firearm even if another participant, not the defendant, possessed the firearm.
[2] A trial court's failure to state the grounds for retaining jurisdiction over a defendant for a portion of a sentence with the particularity required by statute is not pre…
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Join FLexlaw to unlock all legal intelligence“The fact that one other than appellant carried the gun does not preclude a finding that appellant was guilty of robbery with a firearm.”
Establishes that co-participants can be guilty of armed robbery even if they do not personally carry the weapon.
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Join FLexlaw to unlock all legal intelligenceAppellant Jenkins, along with two other males, robbed a convenience store. One of the other individuals carried a gun, not the appellant. The jury fou…
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PER CURIAM.
Appellant seeks reversal of a judgment of guilty of robbery entered pursuant to a jury verdict, and from the portion of a 75 year sentence that (a) retained jurisdiction over appellant for the first third of the sentence and (b) required appellant to serve a minimum of three years.
Appellant, together with two other males, allegedly robbed a convenience store. One of the other individuals had a gun. After the jury found appellant guilty of robbery as charged in the information, the trial court reviewed a PSI report and sentenced appellant to 75 years in prison with a mandatory minimum of three years and retained jurisdiction over the first one-third of the sentence.
Appellant raises five points on appeal, four of which fail to demonstrate reversible error. Regarding those four, the evidence was adequate for the jury to find that appellant was a participant in the robbery. The fact that one other than appellant carried the gun does not preclude a finding that appellant was guilty of robbery with a firearm. Hillman v. State, 410 So. 2d 180 (Fla. 2d DCA 1982).
Finally, the court’s rulings in giving a flight instruction and refusing appellant’s requested instruction on identification were proper. The remaining point has two aspects to it. It suggests first that the circuit court erred in retaining jurisdiction over the appellant for the first one-third of the sentence without stating the grounds therefor with the particularity required by Section 947.16(3), Florida Statutes (1981).
The record shows that the circuit court failed to follow the statute; however, the point is not preserved for appellate purposes because appellant made no objection at the time, Whitehead, v. State, 446 So. 2d 194 (Fla. 4th DCA 1984); Hernandez v. State, 425 So. 2d 213 (Fla. 4th DCA 1983); McFadden v. State, 423 So. 2d 456 (Fla. 4th DCA 1982), and because the error is not of fundamental proportions. Whitehead, supra.
Accordingly, we do not disturb the sentence insofar as it maintains circuit court jurisdiction over the appellant for the first third of that sentence. This ruling is without prejudice to appellant’s initiating a Rule 3.850 proceeding to present this question to the circuit court. The second aspect has to do with the imposition of a three year mandatory minimum term as part of the sentence. In order for a court to impose a term under Section 775.087(2), Florida Statutes (1981), the possession of the weapon may not be vicarious; it must be direct. The weapon must be possessed by the individual receiving the mandatory sentence. Hillman v. State, supra.
Accordingly, the judgment in this cause is affirmed. The sentence in this cause shall be modified so as to delete therefrom the imposition of a three year mandatory minimum and, as so modified, the sentence is affirmed.
AFFIRMED, as modified.
ANSTEAD, C.J., and DOWNEY and GLICKSTEIN, JJ., concur.
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Garrett v. State, 788 So. 2d 328 (Fla. 4th DCA 2001)…f a firearm during this criminal episode, it was error for the trial court to impose a three-year minimum mandatory sentence pursuant to Florida Statutes section 775.087(2)(1997). See State v. Rodriguez, 602 So. 2d 1270 (Fla.1992); Jenkins v. State, 448 So. 2d 1060, 1062 (Fla. 4th DCA 1984); see also Powell v. State, 724 So. 2d 1207, 1207-08 (Fla. 2d DCA 1998). Moreover, the State concedes that the improper imposition of a three-year minimum mandatory for use of a firearm has been held to constitute “fundament…
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Willingham v. State, 541 So. 2d 1240 (Fla. 2d DCA 1989)…However, there is ample case law which holds that vicarious possession is not adequate for purposes of imposing the three-year mandatory minimum provision under section 775.087(2)2; possession under that subsection must be direct. Jenkins v. State, 448 So. 2d 1060 (Fla. 4th DCA 1984), reversed on other grounds, 466 So. 2d 1068 (Fla.1985); Brown v. State, 358 So. 2d 92 (Fla. 4th DCA), cert. denied, 364 So. 2d 881 (Fla.1978). A plain reading of section 775.087(1) would be to require proof that Willingham actua…
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Sye Christopher Jenkins v. State, 466 So. 2d 1068 (Fla. 1985)…EHRLICH, Justice. We review the decision of the district court in Jenkins v. State, 448 So. 2d 1060 (Fla. 4th DCA 1984) because of direct and express conflict with State v. Rhoden, 448 So. 2d 1013 (Fla.1984). We have jurisdiction pursuant to article V, section 3(b)(3), Florida Constitution. The facts of the case and issues of law are set forth i…
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
- Whitehead v. State, 446 So. 2d 194 (Fla. 4th DCA 1984)
- Hillman v. State, 410 So. 2d 180 (Fla. 2d DCA 1982)
- Langdale Co., N.V. v. Fla. Paving Co., Inc., 423 So. 2d 456 (Fla. 3d DCA 1982)
- Duclos v. State, 423 So. 2d 456 (Fla. 4th DCA 1982)
- Hernandez v. State, 425 So. 2d 213 (Fla. 4th DCA 1983)