RICHARD FIPPS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 1989-12-11
No. 89-293
BOOTH, J., concurs., ZEHMER, J., specially concurs with opinion.
553 So. 2d 382 Florida District Court of Appeal, First District (1989) Positive Treatment
Cited by 2 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

Richard Fipps appeals his conviction for armed burglary and imposition of a three-year mandatory minimum sentence. The court affirmed, holding that Fipps was armed while in flight after committing the burglary, satisfying the statutory requirement for armed burglary and mandatory sentencing, and that any error in cross-examination regarding his Bible was harmless.


Holding

The court held that Fipps was armed while in flight after committing the burglary, which constitutes being armed "in the course of committing" the offense under Florida law. The three-year mandatory minimum sentence was properly applied because Fipps had the rifle in his possession during the flight after the burglary.


Headnotes

[1] A person is guilty of armed burglary if they are armed while in the course of committing the offense, which includes flight after the commission of the burglary.

[2] A firearm found within arm's reach of a defendant during flight after a burglary satisfies the "had in his possession" requirement for a mandatory minimum sentence.

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Key Quotes

“An act "is in the course of committing" if it occurs in an attempt to commit the offense or in flight after the attempt or commission.”

Definition of "in the course of committing" from Florida statute, establishing that flight after the burglary is included

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Facts & Procedural History

Fipps admitted to burgling mini-warehouse storage units. Officer Roberts observed him run from the structure, enter his truck, and drive away. When ap…

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Opinion of the Court
NIMMONS, Judge.

NIMMONS, Judge.

The defendant appeals from a judgment and sentence for armed burglary. Although admitting to the burglary of the subject mini-warehouse storage units, he claims he was not armed and that the court erred in denying his motion for judgment of acquittal as to the higher degree of burglary attributable to the “armed” fea-, ture of the burglary charge. He also claims reversible error in the court’s overruling his objections to the prosecutor’s questions on cross-examination of the defendant relative to the defendant’s practice of carrying his Bible around with him. We affirm.

The defendant admittedly burgled the subject structure. Officer Roberts observed the defendant run from the structure, enter his truck and proceed to drive off. Roberts apprehended the defendant and ordered him to exit the truck. There was also a 16-year-old boy in the truck on • the passenger side. The defendant was subsequently placed under arrest. Roberts testified that there was a .22 caliber rifle found in the passenger compartment. It was situated next to the driver’s leg with the barrel pointing downward.

The defendant asserts that since he did not possess the rifle at or about the situs of the burgled premises, he could not be convicted of armed burglary under Section 810.02(2)(b), Florida Statutes (1987), and the three-year mandatory minimum sentence under Section 775.087(2), Florida Statutes (1987) could not be applied. We disagree.

In order for a person to be guilty of armed burglary, he must have been armed while “in the course of committing the offense.” Section 810.02(2). The phrase “in the course of committing” is defined in Section 810.011(4) as follows:

(4) An act “is in the course of committing” if it occurs in an attempt to commit the offense or in flight after the attempt or commission.

The evidence sufficiently showed that the defendant was armed with a dangerous weapon while in flight after commission of the burglary. See Peoples v. State, 436 So. 2d 972 (Fla. 2nd DCA 1983).

Also, the three-year mandatory minimum was properly applied because the defendant “had in his possession” the above referred rifle within the meaning of Section 775.087(2). See Williams v. State, 502 So. 2d 1307 (Fla. 3rd DCA 1987), approved 517 So. 2d 681 (rifles found within arm’s reach of defendant). As noted above, the loaded rifle was right at the defendant’s knee when he was apprehended.

Further, the three-year mandatory minimum is applicable notwithstanding the fact that the rifle was not possessed in or about the burgled premises but only in the flight after the commission of the burglary. In this respect, we construe Section 775.-087(2) consistent with our construction of Section 810.02(2), supra (insofar as the inclusion of the defendant’s acts committed while in flight after the commission of the burglary). We do so because the clear intent of the mandatory minimum provisions of Section 775.087(2) was to discourage the possession of a firearm at any time during the course of the commission of the subject offense. See Williams v. State, 517 So. 2d 681, 682 (Fla.1988).1

During the course of the trial, the defendant carried a Bible with him. Apparently, no objection was made by the state. Instead, on cross-examination of the defendant, the prosecutor was allowed, over objection, to ask the defendant whether he had carried his Bible with him when he committed the subject offense. He was asked the same question relative to two prior offenses which the state elicited on cross. Even if error,2 which we do not decide, such was harmless beyond a reasonable doubt. The evidence of the defendant’s guilt was overwhelming. The facts were virtually undisputed. Indeed, defendant’s testimony was tantamount to a judicial confession.

AFFIRMED.

BOOTH, J., concurs.

ZEHMER, J., specially concurs with opinion.

. We note that no argument has been advanced that it was improper to convict the defendant of the greater offense of armed burglary and to also impose the mandatory minimum penalty because of the firearm. Such double enhancement argument has been rejected by the Supreme Court. Williams, supra, at p. 682.

. Compare, Caldwell v. State, 243 So. 2d 422 (Fla. 1st DCA 1971).

Concurrence
ZEHMER, Judge specially

ZEHMER, Judge specially

concurring.

I conclude that it was error to permit the prosecutor to ask, over appropriate objection, whether the defendant carried his Bible with him when he committed the burglary. This was nothing more than a snide comment that demeaned the dignity of a court proceeding, and served neither to prove an element of the charged offense nor to impeach the witness’s credibility. If the prosecutor had any question about the propriety of the defendant’s carrying the Bible to the witness stand, the proper procedure was to make a timely objection and get a ruling from the court.

I agree, however, that this error was harmless under the circumstances, and I fully concur in the affirmance on all other issues.


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Citator

Cited By

  • State v. Smith, 601 So. 2d 263 (Fla. 1st DCA 1992)
    …s “in his possession” for purposes of Section 775.087(2), even though they were found at his feet (517 [*267] So. 2d at 682) or “within an arm’s reach” (502 So. 2d at 1308), rather than on .his person. A similar result was reached in Fipps v. State, 553 So. 2d 382 (Fla. 1st DCA1989), where the defendant argued that it was error to apply the 3-year minimum mandatory sentence provision contained in Section 775.087(2) to him because the firearm had been found next to him in the truck he was driving, rather than…
    1 / 2

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