KEVIN L. TURPIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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ERVIN, Judge.
We reverse the trial court’s denial of Turpin’s motion filed pursuant to Florida Rule of Criminal Procedure 3.850. Although Turpin pled guilty to armed burglary and agreed to a prison sentence with a mandatory three-year minimum for use of a firearm, this did not constitute an admission that he was in actual possession of a firearm. Bell v. State, 589 So. 2d 1374 (Fla. 1st DCA 1991). A defendant must actually possess the firearm during the crime to be subject to the minimum mandatory. Earnest v. State, 351 So. 2d 957 (Fla.1977). The trial court did not inquire at the plea hearing whether there was a factual basis for imposing the minimum mandatory.
In his post-conviction motion, Turpin alleged that he was prejudiced by the trial court’s omission, in that his co-defendant allegedly prepared an affidavit stating that he, and not Turpin, possessed the only firearm used during the robbery. Accordingly, Turpin has raised a prima facie ground for relief. Nowlin v. State, 639 So. 2d 1050 (Fla. 1st DCA 1994).
REVERSED and REMANDED for further proceedings consistent with this opinion.
JOANOS and WOLF, JJ., concur.
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Gamble v. State, 61 So. 3d 1224 (Fla. 1st DCA 2011)…plea. However, this Court has held that a defendant’s agreement to be subject to a minimum-mandatory sentence for possessing a firearm does not constitute an admission that the defendant was in actual possession of the firearm. See Turpin v. State, 651 So. 2d 176 (Fla. 1st DCA 4995). Thus, we reverse and remand for the trial court to attach records conclusively refuting the appellant’s claim or to hold an evidentiary hearing. We note that if the trial court finds that a factual basis did not exist to support…
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German DE LOS Rios v. State, 998 So. 2d 1212 (Fla. 4th DCA 2009)…y minimum sentences were illegal because he did not actually possess a firearm during these offenses, and never stipulated that he did. Case law supports his challenge. See, e.g., Kenny v. State, 693 So. 2d 1136 (Fla. 1st DCA 1997); Turpin v. State, 651 So. 2d 176 (Fla. 1st DCA 1995). Since appellant’s claim is legally sufficient, we reverse and remand for further proceedings. If the trial court should summarily deny relief again, it shall attach portions of the record refuting appellant’s claim. REVERSED…
Authorities Cited
- Earnest v. State, 351 So. 2d 957 (Fla. 1977)
- Bell v. State, 589 So. 2d 1374 (Fla. 1st DCA 1991)
- Nowlin v. State, 639 So. 2d 1050 (Fla. 1st DCA 1994)