TYRONE T. DEMPS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Tyrone Demps was convicted of armed robbery but appealed the three-year minimum mandatory sentence imposed under Florida law. The court affirmed his conviction as an accomplice to the robbery but vacated the mandatory minimum sentence because the evidence showed his co-conspirator, not Demps himself, had actual physical possession of the firearm during the crime.
While the evidence was sufficient to convict Demps of armed robbery as a principal to the crime, it was insufficient to impose the minimum mandatory sentence because Demps did not have actual physical possession of the firearm during the commission of the felony. More than vicarious or constructive possession is required by the statute.
[1] A conviction for armed robbery may be based on a theory of principal liability, even if the defendant did not personally possess the firearm.
[2] Imposition of a minimum mandatory sentence for a firearm offense requires proof of the defendant's actual physical possession of the firearm during the commission of the…
Previewing 2 of 4 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“While this evidence is sufficient to convict Demps of armed robbery on the theory he was a principal to the crime, it is not adequate to warrant the imposition of the minimum mandatory sentence. More than vicarious or constructive possession of the firearm is required by section 775.087(2). The state must prove the defendant had actual physical possession of the firearm during the course of the commission of the felony.”
Establishes the key legal distinction: accomplice liability differs from the requirements for imposing mandatory sentencing enhancement, which requires actual physical possession of the weapon.
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDemps and a friend Baptiste planned to rob a cab driver. Demps gave the gun to Baptiste before the robbery occurred. During the robbery, Baptiste held…
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W. SHARP, Judge.
Demps appeals from his conviction and sentence for robbery with a firearm. He contends the trial court erred in imposing a three year minimum mandatory sentence pursuant to section 775.087(2), Florida Statutes (1993), because based on this record, it was not established that he had actual physical possession of the gun during the robbery. We affirm his conviction but quash his minimum mandatory sentence.
In this case Demps was charged with robbery with a firearm.1 He pled no contest to the charge but did not admit his guilt. At the sentencing hearing Demps admitted he and a friend planned to call a cab and rob the cab driver. He said he gave the gun to his friend and did not handle it during the course of the robbery. “I met up with Baptiste ... and I gave (the gun) to him and after we went downtown, he had the gun and he say (sic) let’s call a cab. He wanted to rob him.” Demps sat in the back seat of the cab and Baptiste held the gun to the head of the cab driver, from the front seat.
While this evidence is sufficient to convict Demps of armed robbery on the theory he was a principal to the crime,2 it is not adequate to warrant the imposition of the minimum mandatory sentence. More than vicarious or constructive possession of the firearm is required by section 775.087(2). The state must prove the defendant had actual physical possession of the firearm during the course of the commission of the felony. Williams v. State, 622 So. 2d 456 (Fla.), cert. denied, — U.S. —, 114 S.Ct. 570, 126 L.Ed.2d 470 (1993); Hernandez v. State, 621 So. 2d 1353 (Fla.1993); Earnest v. State, 351 So. 2d 957 (Fla.1977); Poiteer; Freeny; Belcher v. State, 550 So. 2d 1185 (Fla. 5th DCA 1989).3
Accordingly we affirm the conviction and sentence in all respects except the three-year minimum mandatory sentence imposed pursuant to section 775.087(2), whieh we vacate.
AFFIRMED in part; Minimum Mandatory Sentence VACATED.
COBB and GRIFFIN, JJ., concur. . § 812.13(2)(a), Fla.Stat. (1993).
. See Poiteer v. State, 627 So. 2d 526 (Fla. 2d DCA 1993); Freeny v. State, 621 So. 2d 505 (Fla. 5th DCA 1993).
. See also State v. Rodriguez, 602 So. 2d 1270 (Fla.1992) (defendant's sentence could not be enhanced under section 775.087(1) where a passenger in the car picked up a gun and shot at police and the defendant did not have actual possession of the weapon); Willingham v. State, 541 So. 2d 1240 (Fla 2d DCA), rev. denied, 548 So. 2d 663 (Fla.1989) (where sale of cocaine was completed before the defendant seized a gun and began shooting, he did not carry or use the weapon during commission of the offense and enhancement under section 775.087(1) was not proper.)
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Parker v. State, 906 So. 2d 1273 (Fla. 5th DCA 2005)…crime. See, e.g., State v. Rodriguez, 602 So. 2d 1270 (Fla. 1992); Blanc v. State, 899 So. 2d 455 (Fla. 4th DCA 2005); Thompson v. State, 862 So. 2d 955 (Fla. 2d DCA 2004); Clark v. State, 701 So. 2d 912 (Fla. 4th DCA 1997). See also Demps v. State, 649 So. 2d 938 (Fla. 5th DCA 1995). Parker’s appellate counsel, however, failed to raise the enhancement issue during the previous appeal resulting in an affirmance. See Parker v. State, 842 So. 2d 130 (Fla. 5th DCA 2003). Accordingly, we grant the petition. A co…
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Marques Mandred Hayden v. State, 833 So. 2d 275 (Fla. 5th DCA 2002)…we have held that the State must plead and prove that the defendant had actual physical possession of the firearm during the commission of the felony before the court can impose the section 775.087(2) minimum mandatory sentence, see Demps v. State, 649 So. 2d 938 (Fla. 5th DCA 1995), Hayden failed to preserve the issue either by raising it below or by filing a motion to correct sentence under Florida Rule of Criminal Procedure 3.800(b). Instead, Hayden argues that imposing the minimum mandatory provision on…
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Kenny v. State, 693 So. 2d 1136 (Fla. 1st DCA 1997)…al basis of actual possession, which leaves only the state’s gun ownership argument as the basis for the court’s imposition of the three-year mandatory minimum. Imposition of the three-year sentence enhancement, therefore, was error. Demps v. State, 649 So. 2d 938, 939 (Fla. 5th DCA 1995)(vacating three-year mandatory minimum in direct appeal from nolo plea and stating the following: “While this evidence is sufficient to convict Demps of armed robbery on the theory he was a principal to the crime, it is not a…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Earnest v. State, 351 So. 2d 957 (Fla. 1977)
- State v. Anibal Rodriguez, 602 So. 2d 1270 (Fla. 1992)
- Poiteer v. State, 627 So. 2d 526 (Fla. 2d DCA 1993)
- Williams v. State, 622 So. 2d 456 (Fla. 1993)
- Willingham v. State, 541 So. 2d 1240 (Fla. 2d DCA 1989)
- Freeny v. State, 621 So. 2d 505 (Fla. 5th DCA 1993)
- Belcher v. State, 550 So. 2d 1185 (Fla. 5th DCA 1989)
- Hernandez v. State, 621 So. 2d 1353 (Fla. 1993)