FREDDIE SEARS, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court affirmed the trial court's conviction but reversed and remanded for resentencing on three felonies because the sentences exceeded statutory maximums and a mandatory minimum firearm enhancement was imposed without jury findings.
Sentences for aggravated assault, depriving an officer of means of protection, and resisting an officer with violence must be reversed where they exceed the five-year statutory maximum, and the three-year mandatory minimum under section 775.087(2) was improper without a jury finding that a firearm was used.
[1] A mandatory minimum sentence under section 775.087(2) for firearm use requires a specific jury finding that a firearm was used in commission of the offense; imposition wi…
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Join FLexlaw to unlock all legal intelligence“if a defendant's score indicates a guidelines sentence that exceeds the statutory maximum provided for that offense, the statutory maximum sentence should be imposed”
Explaining the proper application of sentencing guidelines when they conflict with statutory maximums.
Freddie Sears, Jr. was convicted of aggravated assault, depriving an officer of his means of protection, and resisting an officer with violence. The t…
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GUNTHER, Judge.
We affirm the trial court in all respects except two.
We reverse and remand for resentencing of the appellant on the charges of aggravated assault, depriving an officer of his means of protection, and resisting an officer with violence. Each of these crimes is a third degree felony and carries a five-year mandatory maximum sentence. See §§ 784.021, 843.01, 842.025, 775.082, Fla. Stat. (1987). Under Florida Rule of Criminal Procedure 3.701(d)(9), if a defendant’s score indicates a guidelines sentence that exceeds the statutory maximum provided for that offense, the statutory maximum sentence should be imposed. Thus, the state concedes that appellant’s concurrent fifteen-year sentences for these three crimes must be reversed and the case .remanded for resentencing of these crimes.
Furthermore, the trial court erred in sentencing appellant to the three-year mandatory minimum provision of section 775.-087(2), Florida Statutes (1987). Since the jury made no specific finding that a firearm was used in the commission of the aggravated assault, imposition of the three-year mandatory minimum sentence was improper. State v. Overfelt, 457 So. 2d 1385 (Fla.1984).
AFFIRMED IN PART; REVERSED IN PART; REMANDED FOR RESENTENC-ING.
STONE and GARRETT, JJ., concur.
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Citator
Cited By
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State v. Hargrove, 694 So. 2d 729 (Fla. 1997)…DCA 1994) (jury must make finding by specific question or special verdict form); Boswell v. State, 544 So. 2d 243 (Fla. 3d DCA 1989) (finding cannot be inferred by court based upon another conviction involving display of a firearm); Sears v. State, 539 So. 2d 1174 (Fla. 4th DCA 1989) (required specific finding to uphold mandatory minimum); Douglas v. State, 523 So. 2d 704 (Fla. 2d DCA 1988) (the proper means to determine whether firearm was used is by specific question on the verdict form); Henry v. State, 48…
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Rosa-Sanchez v. State, 561 So. 2d 25 (Fla. 3d DCA 1990)…sentencing defendant in excess of the statutory maximum. Where the guidelines sentence “exceeds the maximum sentence provided by statute for that offense, the statutory maximum sentence should be imposed.” Fla.R.Crim.P. 3.701(d)(10); Sears v. State, 539 So. 2d 1174 (Fla. 4th DCA 1989). Consequently, we remand for resentencing. Probation revocation affirmed; remanded for resentencing.…
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Omega Dupont and Raymond DuPont v. State, 571 So. 2d 125 (Fla. 3d DCA 1990)…tions. We affirm appellants’ sentences except we reverse Raymond Dupont’s sentence for carrying a concealed firearm and remand for resentencing within statutory parameters. See Rosa-Sanchez v. State, 561 So. 2d 25 (Fla. 3d DCA 1990); Sears v. State, 539 So. 2d 1174 (Fla. 4th DCA 1989); see also §§ 790.01, 775.082(3)(d), Fla.Stat. (1989).…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Overfelt, 457 So. 2d 1385 (Fla. 1984)