DARRIN BELLINGER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Bellinger appealed his armed robbery conviction, challenging both the imposition of a three-year mandatory minimum sentence under section 775.087(2) for firearm possession and various court costs assessed at sentencing. The court reversed the mandatory minimum and remanded for resentencing regarding the costs because Bellinger lacked actual physical possession of the firearm and was not afforded proper notice and opportunity to be heard on his indigency status.
The court held that actual physical possession of the firearm is required to impose the mandatory minimum sentence under section 775.087(2), and that constructive or vicarious possession is insufficient. Additionally, an indigent defendant must receive notice and an opportunity to be heard regarding indigency status before costs can be imposed, and if indigent, community service must be imposed in lieu of costs.
[1] A mandatory minimum sentence for possession of a firearm during the commission of a crime requires actual physical possession of the weapon, not merely constructive or vi…
[2] A defendant must be afforded notice and an opportunity to be heard regarding their indigency status before court costs are imposed.
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Establishes the critical distinction that actual physical possession is required for the mandatory minimum sentence enhancement, even though constructive possession suffices for the underlying armed robbery conviction.
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Join FLexlaw to unlock all legal intelligenceBellinger was convicted of armed robbery with a firearm. During the crime, Bellinger's accomplice, not Bellinger himself, possessed and carried the we…
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JOANOS, Judge.
In this appeal from a conviction for armed robbery with a firearm, appellant appeals both the imposition of a three year mandatory minimum sentence under section 775.087(2), Florida Statutes (1985), for possession of a firearm during commission of a crime, and the imposition of $200 in additional court costs under section 27.- 3455, Florida Statutes (1985). Appellee concedes that both points were in error. We agree and reverse.
Section 775.087(2) states that any person who is convicted of robbery and who “had in his possession a ‘firearm’ ” shall be sentenced to a minimum term of three years imprisonment. While constructive or vicarious possession is sufficient to sustain a conviction for robbery with a firearm, it is insufficient to constitute possession under this statute. Earnest v. State, 351 So. 2d 957 (Fla.1977). Actual physical possession of the weapon is contemplated before imposition of the section 775.087(2) mandatory minimum three-year term of imprisonment may be imposed. See Lester v. State, 458 So. 2d 1194 (Fla. 1st DCA 1984). As both appellant and appel-lee point out, appellant’s accomplice had possession of the weapon during the entire course of the crime. Appellant was never in possession.
Therefore, the mandatory minimum sentence portion of appellant’s sentence is reversed.
As to costs assessed pursuant to section 27.3455, Florida Statutes (1985), appellant was entitled to a determination of his indigency status at the time of sentencing. Lawton v. State, 492 So. 2d 404, 406 (Fla. 1st DCA 1986). Had appellant been adjudged indigent at sentencing, the trial court would have been required to impose a term of community service in lieu of costs. § 27.3455, Fla.Stat. (1985).
Additionally, appellant, who had been adjudged indigent for the purposes of representation by a public defender, should have received adequate notice and a full opportunity to object prior to the imposition of costs, as well as a judicial finding of his ability to pay prior to any enforcement of the collection of costs. Jenkins v. State, 444 So. 2d 947 (Fla.1984); Lawton, 492 So. 2d at 406. As to these costs, the cause is remanded for resentencing under amended section 27.-3455, Florida Statutes (Supp.1986), after appellant is given notice and an opportunity to be heard on the issue of his indigency. Carter v. State, 513 So. 2d 782 (Fla. 1st DCA 1987); Gaskins v. State, 513 So. 2d 1087 (Fla. 1st DCA 1987); Riddell v. State, 509 So. 2d 956 (Fla. 1st DCA 1987).
Appellant also was assessed costs of $20.00 pursuant to section 960.20, Florida Statutes, and $2.00 pursuant to section 943.25(4), Florida Statutes. Appellant similarly should have received notice and an opportunity to object prior to the imposition of these costs. Jenkins, 444 So. 2d at 950. Though appellant failed to object to these costs at trial, sentencing errors that produce an illegal sentence and are apparent from the record can be addressed on appeal without a contemporaneous objection. Brown v. State, 508 So. 2d 776 (Fla. 1st DCA 1987).
And though appellant fails to raise the issue of these particular costs in his brief on appeal, appellant does in his notice of appeal generally request that this court review the judgment wherein these costs are imposed. The sentencing error is apparent from a review of the record. As to these costs, the cause is remanded so that appellant can be given notice and an opportunity to be heard prior to their imposition.
The conviction is affirmed, but the sentence is reversed and the cause is remanded for resentencing in accordance with this opinion.
SMITH, C.J., and WENTWORTH, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (12 total)
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Wood v. State, 544 So. 2d 1004 (Fla. 1989)…with procedural due process requirements for assessing costs against criminal defendants, as enunciated in Jenkins, constitutes fundamental error. In Outar v. State, 508 So. 2d 1311 (Fla. 5th DCA 1987), the fifth district, and in Bellinger v. State, 514 So. 2d 1142 (Fla. 1st DCA 1987), the first district, held that this failure does constitute fundamental error, therefore obviating the requirement of a contemporaneous objection. We begin our analysis by noting that in Jenkins we impliedly held that such due p…
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Bell v. State, 589 So. 2d 1374 (Fla. 1st DCA 1991)…sufficient to constitute possession under Section 775.087(2), Florida Statutes (1989), which requires a minimum three-year prison term for a person convicted of robbery with a firearm. Earnest v. State, 351 So. 2d 957 (Fla.1977); Bellinger v. State, 514 So. 2d 1142 (Fla. 1st DCA 1987). To justify a mandatory minimum, the defendant, rather than an accomplice, must physically or actually possess the weapon during the crime. Thus, the trial court at bar erred in concluding that by pleading guilty to count four, B…
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Young v. State, 616 So. 2d 1133 (Fla. 3d DCA 1993)…weapon, as the statute requires. Vicarious or constructive possession of a weapon is insufficient to support a minimum mandatory prison term under section 775.087(2), Fla.Stat. (1987). Earnest v. State, 351 So. 2d 957 (Fla.1977); Bellinger v. State, 514 So. 2d 1142 (Fla. 1st DCA 1987). For these reasons, I would hold that defendant properly sought relief under rule 3.800(a), reverse the trial court’s order denying relief, and remand for an evidentiary hearing. . In Bell, defendant pled guilty to kidnapping w…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Jenkins v. State, 444 So. 2d 947 (Fla. 1984)
- Earnest v. State, 351 So. 2d 957 (Fla. 1977)
- Bethune v. State, 492 So. 2d 404 (Fla. 2d DCA 1986)
- Lawton v. State, 492 So. 2d 404 (Fla. 1st DCA 1986)
- Brown v. State, 508 So. 2d 776 (Fla. 1st DCA 1987)
- Riddell v. State, 509 So. 2d 956 (Fla. 1st DCA 1987)
- Gaskin v. State, 513 So. 2d 1087 (Fla. 1st DCA 1987)
- Lester v. State, 458 So. 2d 1194 (Fla. 1st DCA 1984)
- Carter v. State, 513 So. 2d 782 (Fla. 1st DCA 1987)