EUMIR HOLMES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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In this appeal of a robbery conviction involving a firearm, the appellate court affirmed the denial of the motion for judgment of acquittal, finding sufficient evidence that a firearm was used. However, the court reversed the sentence and remanded for resentencing after determining the trial court erroneously believed it lacked discretion to impose youthful offender sentencing as an alternative to the mandatory minimum firearm sentencing requirement.
The appellate court affirmed the denial of the motion for judgment of acquittal because sufficient evidence supported submission of the question of whether an actual firearm was used. However, the court reversed the sentence and remanded because the trial court erroneously believed it lacked discretion to impose youthful offender sentencing as an alternative to the mandatory minimum firearm sentencing requirement.
[1] A motion for a judgment of acquittal requires the movant to admit all facts in evidence and all reasonable inferences favorable to the state.
[2] A jury question exists regarding whether a real firearm was used in an offense if there is a sufficient evidentiary basis for such a determination.
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Join FLexlaw to unlock all legal intelligence“when a party moves for a judgment of acquittal, he admits all facts in evidence adduced and every conclusion favorable to the state reasonably in-ferable therefrom”
Establishes the legal standard for reviewing motions for judgment of acquittal, supporting affirmance of the denial
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Join FLexlaw to unlock all legal intelligenceAppellant Holmes was convicted of robbery with a firearm. The trial court denied Holmes's motion for a judgment of acquittal, determining there was su…
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PER CURIAM.
In this appeal of a judgment of conviction and sentence for robbery with a firearm, appellant argues that the lower court erred in denying his motion for a judgment of acquittal. We find there was a sufficient evidentiary basis for submission of the question of whether an actual, as opposed to, a toy firearm was used in the commission of this offense. We note that when a party moves for a judgment of acquittal, he admits all facts in evidence adduced and every conclusion favorable to the state reasonably in-ferable therefrom. Anderson v. State, 504 So. 2d 1270 (Fla. 1st DCA 1986). Accordingly, we affirm the denial of the motion for a judgment of acquittal.
We do agree, however, that a remand is necessary. The record reflects that the lower court, after receiving comments by the assistant state attorney, was under the impression that it did not have the option of avoiding the mandatory minimum sentence for use of a firearm, section 775.087(2)(a), Florida Statutes, by sentencing appellant as a youthful offender. The youthful offender sentencing statute itself expressly provides that the sentencing alternatives prescribed therein are “[i]n lieu of other criminal penalties authorized by law_” Section 958-04(2), Florida Statutes (1993). The record is unclear as to whether the lower court would have imposed a youthful offender sentence had the court been aware that this option was available. Accordingly, we vacate the sentence imposed and remand for reconsideration of the sentence. See, Blackmon v. State, 616 So. 2d 587 (Fla. 1st DCA 1993). Notwithstanding our remand, we emphasize that the lower court is under no obligation to sentence appellant under the Youthful Offender Act unless the lower court believes such a sentence would be appropriate.
We AFFIRM in part; REVERSE in part, and REMAND.
SMITH, LAWRENCE and BENTON, JJ., concur.
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Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Anderson v. State, 504 So. 2d 1270 (Fla. 1st DCA 1986)
- Lekisha R. Blackmon v. State, 616 So. 2d 587 (Fla. 1st DCA 1993)
- Morley v. State, 616 So. 2d 587 (Fla. 3d DCA 1993)