ZACHERY HICKS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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.
The court held that vicarious possession of a firearm is insufficient to impose a mandatory minimum sentence, and a departure sentence requires written reasons.
Appellant was convicted of offenses committed with a firearm, but only vicariously possessed the firearm. The trial court imposed a departure sentence…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Vicarious Possession cases and more on FLexlaw
PER CURIAM.
In this appeal, appellant challenges only his sentences. He challenges the departure sentence imposed because no written reasons were given for the departure. The sentences for eight offenses also included several three-year mandatory minimum terms under section 775.087(2), Florida Statutes (1987), for committing the offenses while in possession of a firearm. We affirm appellant’s convictions but reverse the sentences imposed and remand for resentencing.
We agree with appellant that there was no evidence of his actual possession of a firearm, but only evidence of vicarious possession through his codefend-ant’s possession of a firearm during the commission of the offenses. Although vicarious possession is sufficient to sustain appellant’s convictions for these offenses under the principal theory, it is not sufficient possession to impose a mandatory minimum period of confinement under the statute. Willingham v. State, 541 So. 2d 1240, 1242 (Fla. 2d DCA), rev. denied, 548 So. 2d 663 (Fla.1989); Taylor v. State, 467 So. 2d 367 (Fla. 2d DCA 1985). Appellant’s failure to object during the sentencing hearing does not waive his right to raise this error on appeal because such a sentencing error constitutes fundamental error. Whitehead v. State, 446 So. 2d 194 (Fla. 4th DCA 1984), rev. denied, 462 So. 2d 1108 (Fla.1985).
We further agree with appellant that the entire sentence must be reversed because it is a departure from the guidelines without written reasons. On remand, the court must resentence appellant within the guidelines. Pope v. State, 561 So. 2d 554 (Fla.1990).
We affirm appellant’s convictions but reverse the sentences imposed and remand for resentencing in accordance herewith.
SCHOONOVER, C.J., and CAMPBELL and PATTERSON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Freeny v. State, 621 So. 2d 505 (Fla. 5th DCA 1993)…sentence to be enhanced pursuant to section 775.087, 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 62…1 / 2
-
Kirby Lee Casselman v. State, 761 So. 2d 482 (Fla. 5th DCA 2000)…h DCA 1999); Johnson v. State, 689 So. 2d 1111 (Fla. 2d DCA 1997). Where there is no evidence to support the sentencing departure reasons, the failure to object does not preclude the issue on appeal, because it is fundamental error.9 Hicks v. State, 583 So. 2d 1106 (Fla. 2d DCA 1991). See also Whitehead v. State, 446 So. 2d 194 (Fla. 4th DCA 1984); Reynolds v.. State, 429 So. 2d 1331, 1333 (Fla. 5th DCA 1983). AFFIRMED in part; REVERSED in part; REMANDED for Resentencing. DAUKSCH and PLEUS, JJ., concur. . §…
-
Jones v. State, 648 So. 2d 1210 (Fla. 4th DCA 1995)…nstruction. First, if any one participant in a robbery carried a firearm during the commission of the crime, all of the participants are guilty as principals under section 777.011, Florida Statutes (1993). See § 812.13(2)(a)(1993); • Hicks v. State, 583 So. 2d 1106 (Fla. 2d DCA 1991); Hough v. State, 448 So. 2d 628 (Fla. 5th DCA 1984). Second, it is sufficient for the jury to find that appellant aided and abetted the eodefendant to find him also guilty of any crime committed by the codefendant in pursuance of…
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
- Pope v. State, 561 So. 2d 554 (Fla. 1990)
- Whitehead v. State, 446 So. 2d 194 (Fla. 4th DCA 1984)
- Willingham v. State, 541 So. 2d 1240 (Fla. 2d DCA 1989)
- Taylor v. State, 467 So. 2d 367 (Fla. 2d DCA 1985)