MARCUS EMILIO RIVAS, 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.
Marcus Rivas was convicted of armed robbery and sentenced to a three-year mandatory minimum for firearm possession. The appellate court affirmed the conviction but vacated the mandatory minimum sentence because the jury made no finding that Rivas actually possessed the firearm, and remanded for resentencing within the guidelines.
The court affirmed the armed robbery conviction but held that the three-year mandatory minimum sentence under section 775.087 cannot be imposed without a jury finding that the defendant had actual possession of the firearm. The court also reversed the sentence because the trial court failed to issue a contemporaneous written order explaining any departure from the sentencing guidelines.
[1] A mandatory minimum sentence for firearm possession during a felony cannot be imposed absent a jury finding that the defendant had actual possession of the firearm.
[2] A jury must make a finding that a defendant committed a crime while using a firearm, either by finding guilt of a firearm-related offense or by answering a special verdic…
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the three-year mandatory penalty under section 775.087, Florida Statutes (1983) cannot be imposed on a defendant found guilty of armed robbery, in which he participated with others, in the absence of a jury finding that the defendant had the firearm in his actual possession”
Establishes the core holding that mandatory minimum firearm sentences require an explicit jury finding of actual possession
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceRivas was convicted of armed robbery by a jury that failed to make a finding that he possessed the firearm during the commission of the robbery. The t…
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 Armed Robbery Conviction cases and more on FLexlaw
PER CURIAM.
Marcus Rivas appeals from an armed robbery conviction and sentence. We affirm appellant’s conviction, but vacate the trial court’s imposition of a three-year minimum mandatory sentence for possession of a firearm and remand for resentencing within the guidelines.
The record shows that the jury failed to make a finding that appellant possessed the firearm during the commission of the robbery. Actual possession of a firearm during the commission of the felony is not a necessary element of the crime of robbery with a firearm. Gonzalez v. State, 440 So. 2d 514 (Fla. 4th DCA), cause dismissed, 444 So. 2d 417 (1983). However, the three-year mandatory penalty under section 775.087, Florida Statutes (1983) cannot be imposed on a defendant found guilty of armed robbery, in which he participated with others, in the absence of a jury finding that the defendant had the firearm in his actual possession. See Hough v. State, 448 So. 2d 628 (Fla. 5th DCA 1984). In State v. Overfelt, 457 So. 2d 1385 (Fla.1984), the supreme court agreed with, and quoted, this court’s previous holding in the same case,
“that before a trial court may enhance a defendant’s sentence or apply the mandatory minimum sentence for use of a firearm, the jury must make a finding that the defendant committed the crime while using a firearm either by finding him guilty of a crime which involves a firearm or by answering a specific question of a special verdict form so indicating.”
Id. at 1387; see Overfelt v. State, 434 So. 2d 945, 948 (Fla. 4th DCA 1983). We hold that the trial court erred when it sentenced appellant to a three-year mandatory sentence under section 775.087.
The state concedes that the trial court failed to issue a contemporaneous order containing written reasons for departure from the sentencing guidelines. See Ree v. State, 565 So. 2d 1329 (Fla.1990). Accordingly, we reverse the sentence imposed by the trial court and remand this case for sentencing within the guidelines. See Pope v. State, 561 So. 2d 554 (Fla.1990) and Pittman v. State, 572 So. 2d 29 (Fla. 4th DCA 1990).
AFFIRMED IN PART; REVERSED IN PART and REMANDED.
DELL, GARRETT and FARMER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Germaine Berry v. State, 652 So. 2d 836 (Fla. 4th DCA 1994)…verfelt, 457 So. 2d 1385, 1387 (Fla.1984). Here the jury found appellant guilty of robbery with a firearm “as charged in the information.” One can be found guilty of armed robbery without ever being in actual possession of a firearm. Rivas v. State, 591 So. 2d 649 (Fla. 4th DCA 1991). Unless the charging document expressly states that the defendant had the firearm during the robbery, or the verdict form contains a special interrogatory finding that the defendant possessed the firearm, the court may not impose…
-
Redd v. State, 684 So. 2d 881 (Fla. 4th DCA 1996)…775.087(2) cannot be imposed in the absence of a jury finding that the defendant was in actual possession of the firearm. Leonard v. State, 660 So. 2d 1172 (Fla. 4th DCA 1995); see State v. Overfelt, 457 So. 2d 1385, 1387 (Fla.1984); Rivas v. State, 591 So. 2d 649 (Fla. 4th DCA 1991). In the instant case, Appellant committed the crimes with two accomplices. The evidence at trial did not conclusively establish that Appellant was in actual possession of a firearm. Thus, since the jury did not make a specific…
-
Leonard v. State, 660 So. 2d 1172 (Fla. 4th DCA 1995)…f a jury finding that appellant had a firearm in his actual possession while participating with others in the armed robbery offense precludes imposition of the mandatory minimum penalty. State v. Overfelt, 457 So. 2d 1385 (Fla.1984); Rivas v. State, 591 So. 2d 649 (Fla. 4th DCA 1991). We remand to the trial court with directions to delete such penalty from appellant’s sentence. Hill v. State, 652 So. 2d 904 (Fla. 4th DCA 1995). AFFIRMED IN PART; REVERSED IN PART and REMANDED. DELL, KLEIN and STEVENSON, JJ…
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)
- REE v. State, 565 So. 2d 1329 (Fla. 1990)
- State v. Overfelt, 457 So. 2d 1385 (Fla. 1984)
- Hinson v. Palm Beach Cnty., 440 So. 2d 514 (Fla. 4th DCA 1983)
- Overfelt v. State, 434 So. 2d 945 (Fla. 4th DCA 1983)
- Gonzalez v. State, 440 So. 2d 514 (Fla. 4th DCA 1983)
- Brewster v. State, 448 So. 2d 628 (Fla. 2d DCA 1984)
- Tondrick Hough v. State, 448 So. 2d 628 (Fla. 5th DCA 1984)
- Pittman v. State, 572 So. 2d 29 (Fla. 4th DCA 1990)