JOHN R. GILLIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 5th DCA | 1986-04-17
No. 85-1348
UPCHURCH and COWART, JJ., concur.
486 So. 2d 706 Florida District Court of Appeal, Fifth District (1986) Caution
Cited by 9 cases

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.

Synopsis

John Gillis appeals his convictions for attempted first-degree murder, aggravated battery, aggravated assault, kidnapping, and firearm possession. The court affirms most convictions and sentences but reverses the mandatory three-year sentence for firearm possession during aggravated battery because the jury verdict did not clearly establish Gillis actually possessed the firearm used in that offense.


Holding

The court affirmed the convictions and most sentences but reversed the mandatory three-year sentence for firearm possession during aggravated battery. The jury verdict form did not sufficiently establish that Gillis actually possessed the firearm used in the aggravated battery because it did not specify which firearm was involved when two were present. The court also rejected the argument that the offenses were part of a single continuous episode, finding evidence that the bedroom pistol-whipping was completed before the street shooting.


Headnotes

[1] A jury verdict finding a defendant guilty of aggravated battery with a firearm is insufficient to support a mandatory minimum sentence for firearm possession when an acco…

[2] A defendant's actual possession of a firearm during the commission of a felony supports a mandatory minimum sentence under section 775.087, Florida Statutes, even if an a…

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Key Quotes

“But under the instant facts, the verdict form lacks the requisite specificity because the firearm referred to in the verdict obviously was the one used and possessed by Thomas. Gillis was guilty as a principal.”

Establishes why the mandatory sentence for firearm possession during aggravated battery must be reversed—the verdict did not clearly establish Gillis actually possessed the firearm involved in that offense.

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Facts & Procedural History

Gillis was present and armed during a violent incident where his accomplice John Thomas pistol-whipped and shot the victim in the arm. The victim was …

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Opinion of the Court
COBB, Chief Judge.

COBB, Chief Judge.

The appellant Gillis was convicted of attempted first-degree murder with a firearm; possession of a firearm in the commission of a felony; aggravated battery with a firearm; aggravated battery; aggravated assault with a firearm; and kidnapping. He was sentenced to twenty years each, concurrently, for the attempted murder and kidnapping; and five years each, concurrently, for the remaining counts. Additionally, pursuant to section 775.087, Florida Statutes (1983), he received consecutive three-year minimum mandatory sentences for the three felonies (attempted murder, aggravated battery and aggravated assault) accompanied by possession of a firearm.

On appeal Gillis contends that the consecutive minimum mandatory sentences were in error. The facts show that the victim of the aggravated battery and the attempted murder was first pistol whipped, then shot in the arm, by one John Thomas, an accomplice of Gillis, at a time when Gillis was also present and armed with a firearm. Gillis relies upon the case of Earnest v. State, 351 So. 2d 957 (Fla.1977), wherein the Florida Supreme Court, acknowledging the doctrine that criminal statutes must be strictly construed, held that the term “possession” in section 775.-087(2) does not clearly encompass constructive possession. Earnest is readily distinguishable from the instant case. Gillis’ possession of a firearm during the two offenses was actual, not vicarious. The fact that a second firearm was possessed and used by Thomas is irrelevant.

Gillis also contends, however, that the jury made no finding that he actually possessed a firearm in its verdict against him as to aggravated battery. The record shows the verdict form against Gillis reads: “We, the jury, find Defendant guilty as charged of aggravated battery with a firearm.” There was no separate interrogatory verdict relating to the possession of a firearm by Gillis. This verdict form would be sufficient to comply with the requirement of a jury finding of possession by Gillis pursuant to State v. Overfelt, 457 So. 2d 1385 (Fla.1984), if there had been but one defendant and one firearm. See Davis v. State, 486 So. 2d 45 (Fla. 5th DCA 1986). But under the instant facts, the verdict form lacks the requisite specificity because the firearm referred to in the verdict obviously was the one used and possessed by Thomas. Gillis was guilty as a principal. Hence, we must reverse the mandatory three-year sentence for possession of a firearm during commission of the aggravated battery in accordance with Overfelt.

Gillis also contends that the offenses of attempted murder and aggravated battery were part of a single, continuous episode which precludes consecutive mandatory sentences pursuant to Palmer v. State, 438 So. 2d 1 (Fla.1983). However, Palmer recognized the validity of such sentences for offenses arising from incidents occurring at separate times and places. There was evidence in the instant case that the pistol whipping of the victim in his bedroom was a completed criminal episode prior to the victim’s subsequent attempt to flee his captors on the street, at which time Thomas shot him. See James v. State, 462 So. 2d 858 (Fla.2d DCA 1985).

We find the appellant’s remaining point regarding a purported discovery violation by the state to be without merit. In furnishing to the defendant a typed transcript of the defendant’s custodial statement, the state sufficiently apprised the defendant of the physical existence of the tape recording from which it was transcribed. At trial there was no objection to the introduction of the transcript itself.

We affirm the convictions and sentences herein except for the imposition of the mandatory three years for firearm possession in conjunction with aggravated battery, which sentence is reversed.

AFFIRMED in part; REVERSED in part.

UPCHURCH and COWART, JJ., concur.


Cases With Similar Vibessemantic neighbors from the corpus


Citator

Cited By

  • Connolly v. State, 172 So. 3d 893 (Fla. 3d DCA 2015)
    …ent during the actual commission of the offense. Application of the reclassification statute under such circumstances is well-established and is unaffected by my analysis. See e.g., Junco v. State, 510 So. 2d 909 (Fla. 3d DCA 1987); Gillis v. State, 486 So. 2d 706 (Fla. 5th DCA 1986); Smith v. State, 438 So. 2d 10 (Fla. 2d DCA 1983). . The majority posits that the Legislature has expressed its intent that the maximum punishment be imposed for people who possess a firearm during the commission of criminal off…
  • Lewis v. State, 625 So. 2d 102 (Fla. 1st DCA 1993)
    …fendant can be convicted, as a principal, of aggravated battery under Section 784.045(l)(a)2, Florida Statutes, when he did not actually carry the firearm, that is apparently the case. See Staten v. State, 519 So. 2d 622 (Fla.1988); Gillis v. State, 486 So. 2d 706 (Fla. 5th DCA 1986). During sentencing, the trial judge made the following statement: You have a score sheet that without even considering HFO puts you at life. In other words, your possible sentence is precisely what the maximum sentence is tha…
  • State v. Jones, 536 So. 2d 1161 (Fla. 5th DCA 1988)
    …this court has previously rejected this argument where the verdict form reflects the jury’s finding that defendant was found guilty of committing the crime “with a firearm.” See Davis v. State, 486 So. 2d 45 (Fla.5th DCA 1986). Cf. Gillis v. State, 486 So. 2d 706 (Fla. 5th DCA 1986). A jury finding of “guilty as charged” has been held a sufficient basis for an enhanced sentence because a firearm was used where, as here, the information specifically charged defendant with use of a firearm in the commission of…

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