LARRY CHARLES BELCHER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Belcher appeals his convictions for armed robbery, attempted robbery, and felon in possession of a firearm, challenging the imposition of a three-year mandatory minimum sentence. The court affirms the convictions but quashes the mandatory minimum, holding that actual possession of a firearm during the robbery is required under Florida law, not merely being present as an accomplice.
The three-year mandatory minimum sentence cannot be imposed. Section 775.087(2) requires actual possession of a firearm during the commission of the robbery, not merely vicarious possession through an accomplice's possession. Belcher had no actual possession of any firearm while the robbery occurred.
[1] A mandatory minimum sentence for possession of a firearm during a robbery requires actual, not vicarious, possession of the firearm by the defendant.
[2] Possession of a firearm by an accomplice during the commission of a robbery is not a sufficient basis to impose a mandatory minimum sentence on a defendant who did not po…
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Join FLexlaw to unlock all legal intelligence“the three year mandatory minimum can only be imposed if the defendant has actual rather than vicarious possession of a firearm during the robbery”
Establishes the legal standard for imposing mandatory minimum sentence under § 775.087(2)
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Join FLexlaw to unlock all legal intelligenceBelcher was one of three men who committed robberies at rest stops on I-95. Turner, another member of the group, actually used a firearm to rob one vi…
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SHARP, Judge.
Belcher appeals from his convictions and sentences for principal to armed robbery with a firearm,1 principal to attempted rob bery with a firearm,2 and possession of a firearm by a convicted felon.3 He received a sentence of seven years on each offense, to run concurrently and a three year mandatory minimum sentence on the armed robbery conviction. Belcher argues the three year mandatory sentence should not have been imposed because the evidence at trial established conclusively that he was not in possession of the firearm used in the robbery while it took place. We agree.
The record in this case shows that Michael Bennett and Rena Vanderwhip were victims of robbery and attempted robbery respectively, at restrooms located at a rest area on 1-95 in St. Johns County. Turner, one of three men including Belcher who were traveling northbound on 1-95 in a red Chevrolet, actually robbed Bennett in the men’s restroom, and attempted to rob Van-derwhip in the women’s restroom. He used a firearm in both instances. Belcher and the third man stood outside the Chevrolet as “lookouts” and they did not have possession of any firearms.
Belcher and the two other men then drove north on 1-95 and stopped at the next rest stop. One tried to hide a firearm under the back seat and Belcher put a rifle in a garbage can. Shortly thereafter they were arrested by police officers.
Section 775.087(2) provides for a three year mandatory minimum sentence if it is shown that the defendant “had in his possession a firearm” during the commission of a robbery.4 (emphasis supplied) In Hough v. State, 448 So. 2d 628 (Fla. 5th DCA 1984), this court interpreted section 775.087(2) to mean that the three year mandatory minimum can only be imposed if the defendant has actual rather than vicarious possession of a firearm during the robbery. Id. at 629.
In this case, there is no evidence that Belcher had actual possession of either the rifle or gun during the commission of the robbery or attempted robbery. The only evidence linking Belcher to a firearm was that he put the rifle in a garbage can when he saw a police car approaching at the next rest stop. However, the robbery had been completed by that time. Possession of a firearm by an accomplice during the commission of a robbery is not a sufficient basis to warrant the imposition of the mandatory minimum three year sentence pursuant to section 775.087(2). Hough.
Accordingly, we affirm Belcher’s convictions and sentences, except we quash the three year mandatory minimum sentence imposed for the armed robbery conviction.
AFFIRM; QUASH part of sentence.
DANIEL, C.J., and HARRIS, Associate Judge, concur. . §§ 777.011, 812.13, Fla.Stat. (1987).
. §§ 777.011, 777.04 & 812.13, Fla.Stat. (1987).
. § 790.23, Fla.Stat. (1987).
. Section 775.087(2), Florida Statutes, provides:
(2) Any person who is convicted of:
(a) Any ... robbery ... or any attempt to commit the aforementioned crimes; or
(b) Any battery ... and who had in his possession a 'firearm,' as defined in s. 790.-001(6), or ‘destructive device,’ as defined in s. 790.001(4), shall be sentenced to a minimum term of imprisonment of 3 calendar years. Notwithstanding the provisions of s. 948.01, adjudication of guilt or imposition of sentence shall not be suspended, deferred, or withheld, nor shall the defendant be eligible for parole or statutory gain-time under s. 944.275, prior to serving such minimum sentence.
Cases With Similar Vibessemantic neighbors from the corpus
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Freeny v. State, 621 So. 2d 505 (Fla. 5th DCA 1993)…the state must prove that the defendant had actual physical possession of the weapon. Williams v. State, 622 So. 2d 456 (Fla.1993); State v. Rodriguez, 602 So. 2d 1270 (Fla.1992); Hicks v. State, 583 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 inform…
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Demps v. State, 649 So. 2d 938 (Fla. 5th DCA 1995)…n of the felony. Williams v. State, 622 So. 2d 456 (Fla.), cert. denied, — U.S. —, 114 S.Ct. 570, 126 L.Ed.2d 470 (1993); Hernandez v. State, 621 So. 2d 1353 (Fla.1993); Earnest v. State, 351 So. 2d 957 (Fla.1977); Poiteer; Freeny; Belcher v. State, 550 So. 2d 1185 (Fla. 5th DCA 1989).3 Accordingly we affirm the conviction and sentence in all respects except the three-year minimum mandatory sentence imposed pursuant to section 775.087(2), whieh we vacate. AFFIRMED in part; Minimum Mandatory Sentence VACATED.…
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Stripling v. State, 602 So. 2d 663 (Fla. 3d DCA 1992)…sed a firearm during the robbery. The three-year mandatory term is hereby quashed. See State v. Rodriguez, 602 So. 2d 1270 (Fla.1992) (statute does not permit enhancement without evidence of personal possession of weapon). See also Belcher v. State, 550 So. 2d 1185 (Fla. 5th DCA 1989) (defendant cannot be subjected to three-year minimum mandatory sentence for possession of firearm where there is no evidence that defendant had actual possession of firearm during commission of crime). Affirmed in part, reversed…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Brewster v. State, 448 So. 2d 628 (Fla. 2d DCA 1984)
- Tondrick Hough v. State, 448 So. 2d 628 (Fla. 5th DCA 1984)