STATE OF FLORIDA, APPELLANT,
v.
RICHARD LEATHERWOOD, APPELLEE
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The trial court was required to impose a mandatory minimum sentence of three years imprisonment for aggravated assault involving a firearm, notwithstanding the sentencing guidelines.
Richard Leatherwood was convicted of aggravated assault and shooting into an occupied vehicle, with the jury finding a firearm was used in the assault…
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PARKER, Judge.
The state appeals the trial court’s imposition of a sentence upon Richard Leather-wood of five years’ probation for convictions of aggravated assault and shooting into an occupied vehicle. As to the aggravated assault charge, the jury found that a firearm was used. Leatherwood cross appeals and seeks a new trial based upon evidentiary rulings of the trial court during the trial. We find the only issue which merits discussion is the issue raised by the state’s appeal and reverse the probationary sentence.
Consistent with section 775.087(2)(a), Florida Statutes (1987)1 and this court’s decision in State v. Sesler, 386 So. 2d 293 (Fla.2d DCA 1980), the trial court was required to sentence Leatherwood to three years in state prison as the minimum sentence for possessing a firearm during the commission of the aggravated assault even though it exceeded the recommended guidelines sentence of any nonstate prison sanction. See Fla.R.Crim.P. 3.701(d)(9).2
We reverse the sentence of probation and remand for a new sentencing hearing, with directions to impose the mandatory term required under section 775.087(2)(a).
Reversed and remanded.
FRANK, A.C.J., and ALTENBERND, J., concur. . That statute provides:
775.087 Possession or use of weapon; aggravated battery; felony reclassification; minimum sentence.—
(2)(a) Any person who is convicted of: ... aggravated assault....
and who had in his possession a "firearm,” as defined in s. 790.001(6), ... shall be sentenced to a minimum term of imprisonment of 3 calendar years.
. That rule provides:
Mandatory Sentences: For those offenses having a mandatory penalty, a scoresheet should be completed and the guideline sentence calculated. If the recommended sentence is less than the mandatory penalty, the mandatory sentence takes precedence. If the guideline sentence exceeds the mandatory sentence, the guideline sentence should be imposed.
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State v. Calzada-Padron, 708 So. 2d 287 (Fla. 2d DCA 1996)…pellee in the instant ease was convicted of one of the enumerated felonies in the statute and had in his possession a firearm, the trial court was required to sentence him to three years in state prison as the minimum sentence. State v. Leatherwood, 561 So. 2d 459 (Fla. 2d DCA 1990); State v. Sesler, 386 So. 2d 293 (Fla. 2d DCA 1980). Accordingly, we affirm the conviction but reverse the sentence and remand with directions to impose the three year mandatory term required under section 775.087(2). Reversed a…
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Steiner v. State, 591 So. 2d 1070 (Fla. 2d DCA 1991)…e sentence under section 775.084(4)(a)l and (4)(b)l for first-degree felonies, then it must also impose incarceration for a term of years under section 775.084(4)(a) 2-3 and (4)(b) 2-3 for second- and third-degree felonies. Cf. State v. Leatherwood, 561 So. 2d 459 (Fla. 2d DCA 1990) (illegal for trial court to place on probation defendant who has been convicted of offense that requires minimum mandatory sentence). The sentencing method followed in this case does not appear to have been followed prior to the…
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State v. Smith, 609 So. 2d 173 (Fla. 3d DCA 1992)…PER CURIAM. As counsel for appellee correctly points out in the “Admission of Error” filed herein, this matter is controlled by State v. Leatherwood, 561 So. 2d 459 (Fla.2d DCA 1990). Accordingly, the sentence imposing probation upon the appellee herein is reversed, and this cause is remanded with directions to the trial court to permit the appellee to [*174] withdraw his previously entered plea of “no contes…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Carnell Sesler, 386 So. 2d 293 (Fla. 2d DCA 1980)