KENNETH ORLANDO ODOM, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that sentences imposed for life felonies exceeded the statutory limit and that a minimum mandatory sentence for firearm possession was improperly imposed without sufficient evidence.
The defendant was convicted of multiple felonies, including life felonies and robbery with a firearm. The trial court imposed sentences that exceeded …
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FULMER, Judge.
Kenneth Odom was convicted of four life felonies and one first-degree felony punishable by life. We affirm the convictions, but reverse the sentences because of errors which the state has conceded.
On each life felony, the defendant was sentenced to a term of forty-five years. Pursuant to section 775.082(3)(a), Florida Statutes (1991), when a court imposes a term of years for a life felony, the sentence is limited to forty years. See Wilson v. State, 622 So. 2d 529 (Fla. 2d DCA 1993).
The defendant was also given a minimum mandatory sentence of three years as part of his sentence for the offense of robbery with a firearm. However, there was no testimony or jury finding that the defendant had possession of a firearm during the crimes, although his co-perpetrator did. Vicarious possession of a firearm will not support the imposition of the three-year minimum mandatory under section 775.087, Florida Statutes (1991). See Earnest v. State, 351 So. 2d 957 (Fla.1977); Poiteer v. State, 627 So. 2d 526 (Fla. 2d DCA 1993).
We affirm the convictions but reverse and remand for resentencing in accordance with this opinion.
ALTENBERND, A.C.J., and BLUE, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Trent DYE v. State, 667 So. 2d 935 (Fla. 2d DCA 1996)…; Brown v. State, 633 So. 2d 112 (Fla.2d DCA 1994). Vicarious or constructive possession of a firearm will not support the imposition of a three-year minimum mandatory sentence contemplated in section 775.087, Florida Statutes (1993). Odom v. State, 657 So. 2d 923 (Fla.2d DCA 1995); Demps v. State, 649 So. 2d 938 (Fla. 5th DCA 1995). Therefore, the trial court’s disposition of Dye’s motion based on the factual basis described in the plea colloquy would be correct, except the form language relied upon in the p…
Authorities Cited
- Earnest v. State, 351 So. 2d 957 (Fla. 1977)
- Poiteer v. State, 627 So. 2d 526 (Fla. 2d DCA 1993)
- Wilson v. State, 622 So. 2d 529 (Fla. 2d DCA 1993)