CARL POITEER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Poiteer appeals the summary denial of his motion to correct a fifteen-year armed robbery sentence that included three years of mandatory minimum time. The court reverses and remands, holding that while a mere procedural failure to establish factual basis for a mandatory sentence does not automatically entitle a defendant to relief, a defendant who specifically alleges prejudice from improper application of the mandatory minimum statute is entitled to have the claim adjudicated on the merits.
An unlawful sentence may be contested at any time, and the absence of a factual basis during plea proceedings or failure to make specific findings regarding firearm use does not automatically entitle a defendant to postconviction relief. However, when a defendant specifically alleges prejudice from improper application of section 775.087(2), the court must reach the merits and determine whether the mandatory sentence was properly invoked.
[1] An unlawful sentence may be contested at any time, regardless of whether the issue could have been raised on direct appeal.
[2] Section 775.087(2), Florida Statutes, requires actual physical possession of a firearm before a minimum mandatory term may be imposed for possession of a firearm during a…
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Join FLexlaw to unlock all legal intelligence“an unlawful sentence may be contested at any time”
establishes that challenges to illegal sentences are not subject to the normal procedural bar against raising issues on collateral review
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Join FLexlaw to unlock all legal intelligencePoiteer is serving a fifteen-year sentence for armed robbery, of which three years represents mandatory minimum time under section 775.087(2) for poss…
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PER CURIAM.
Carl Poiteer appeals the summary denial of his motion to correct sentence. We reverse.
Poiteer is serving a fifteen-year sentence for armed robbery. Three years of this sentence represents mandatory time required by section 775.087(2), Florida Statutes (1989). Poiteer sought the deletion of this mandatory term, arguing that “[tjhere was no showing and/or evidence presented to establish ... that defendant was in actual possession of a firearm during commission of the alleged robbery(ies) herein.”
The circuit court, denying the motion, found this issue could have been raised on direct appeal, and was therefore inappropriate for collateral attack. See generally Spencer v. State, 389 So. 2d 652 (Fla. 1st DCA 1980). However, an unlawful sentence may be contested at any time. Although a defendant may be convicted of robbery with a firearm based on vicarious or constructive possession of the gun (e.g., if it is carried by an accomplice), section 775.087(2) requires actual physical possession before a minimum mandatory term may be imposed for possession of a firearm. Earnest v. State, 351 So. 2d 957 (Fla.1977).
Poiteer’s motion is based on Bell v. State, 589 So. 2d 1374 (Fla. 1st DCA 1991). In accepting a plea from Bell the trial court neglected to determine if a factual basis existed. Bell later moved to vacate the minimum mandatory portion of his sentence, asserting “there was no showing, as required by law, that he was in actual possession of a firearm during the commission of the robbery.” 589 So. 2d at 1375.
The district court concluded that Bell’s assertion, if true, constituted fundamental error. This court has previously determined that it will follow Bell. Anfield v. State, 615 So. 2d 853 (Fla.2d DCA 1993); Ahedo v. State, 603 So. 2d 80 (Fla.2d DCA 1992).1 However, the present case suggests the need to explain our position.
We hold that the absence of a factual basis during a plea colloquy, or the failure to make specific findings regarding use of a firearm, will not ipso facto entitle a defendant to posteonviction relief. In Bell the district court stated it could not “conclusively determine ... whether Bell is now alleging that he did not carry a firearm during the robbery.” 589 So. 2d at 1376. In our view, the movant must specifically allege that he has been prejudiced by application of section 775.087(2).
We therefore decline to follow Bell to the extent it suggests the mere procedural failure to find a factual basis for imposing a minimum mandatory sentence is reversible error. In the present case Poiteer has sufficiently alleged prejudice. Because the trial court did not reach the merits of the motion, the appellate record lacks the necessary exhibits for us to determine if Poiteer’s claim can be refuted. After remand, therefore, it will be incumbent upon the circuit court to determine whether section 775.087(2) was properly invoked in his case.2
Reversed.
DANAHY, A.C.J., and THREADGILL and BLUE, JJ., concur. . A contrary position was taken in Young v. State, 616 So. 2d 1133 (Fla.3d DCA 1993). The majority disagreed with Bell, concluding this sort of error did not constitute an “illegal sentence” as that term is used in Florida Rule of Criminal Procedure 3.800(a).
. Perhaps the most common occasion for improper imposition of a mandatory sentence occurs when more than one person engages in an armed felony offense, but where only one actually carries the firearm. In this instance the "trig-german” faces a minimum mandatory sentence, but it is error to apply section 775.087(2) to the other(s). If such a case proceeds to trial, it is necessary that the trier of fact specifically find whether each individual defendant actually carried a firearm. See generally State v. Overfelt, 457 So. 2d 1385 (Fla.1984). If the case is resolved by plea, Bell demonstrates why receipt of a factual basis is imperative.
However, as long as there is some evidence placing the gun in a particular defendant’s hands, resolution of this question is for the trier of fact. Overfelt. Post-conviction proceedings are not intended to serve as, effectively, a new trial on the issue.
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Citator
Cited By (20 total)
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Callaway v. State, 642 So. 2d 636 (Fla. 2d DCA 1994)…permitted prisoners to present factual challenges to consecutive minimum mandatory sentences under rule 3.800(a) at any time. See Young v. State, 638 So. 2d 532 (Fla. 2d DCA 1994); Brown v. State, 633 So. 2d 112 (Fla. 2d DCA 1994); Poiteer v. State, 627 So. 2d 526 (Fla. 2d DCA 1993). Other districts have taken different approaches. See Young v. State, 616 So. 2d 1133 (Fla. 3d DCA 1993); Nowlin v. State, 639 So. 2d 1050 (Fla. 1st DCA 1994). As a general rule, a postconvietion issue that requires an evidentiar…
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Brown v. State, 633 So. 2d 112 (Fla. 2d DCA 1994)…osed minimum mandatory sentences in three cases. The trial court denied Brown’s motion, concluding that these matters must be brought up on direct appeal and are not subject to collateral attack. In this court’s recent decision of Poiteer v. State, 627 So. 2d 526 (Fla. 2d DCA 1993), the trial court imposed a minimum mandatory sentence on an armed robbery charge. The defendant’s motion to correct an illegal sentence alleged that there was no showing or evidence to establish that the defendant was in actual po…1 / 3
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Blount v. State, 627 So. 2d 576 (Fla. 2d DCA 1993)…lorida Statutes (1991), despite the fact his possession of a firearm was “vicarious” only. The circuit court found that this issue, similarly, is inappropriate for postconviction proceedings. However, this court has held otherwise. Poiteer v. State, 627 So. 2d 526 (Fla. 2d DCA 1993). Accordingly, after remand the circuit court should address this issue on its merits. Affirmed in part, reversed in part, and remanded with instructions. CAMPBELL, A.C.J., and SCHOONOVER and BLUE, JJ., concur.…
Previewing 3 of 20 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Overfelt, 457 So. 2d 1385 (Fla. 1984)
- Earnest v. State, 351 So. 2d 957 (Fla. 1977)
- Bell v. State, 589 So. 2d 1374 (Fla. 1st DCA 1991)
- Young v. State, 616 So. 2d 1133 (Fla. 3d DCA 1993)
- Lucion Spencer v. State, 389 So. 2d 652 (Fla. 1st DCA 1980)
- Anfield v. State, 615 So. 2d 853 (Fla. 2d DCA 1993)
- Oramas v. State, 615 So. 2d 853 (Fla. 2d DCA 1993)
- Ahedo v. State, 603 So. 2d 80 (Fla. 2d DCA 1992)