TRENT DYE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Trent Dye appeals the denial of his motion to correct an illegal sentence for armed robbery. The appellate court reversed and remanded, holding that boilerplate language in a plea agreement is insufficient to establish the factual basis necessary for imposing a mandatory minimum sentence under Florida's armed robbery statute.
The court reversed and remanded, holding that boilerplate language in a plea agreement is insufficient to establish a factual basis for applying the mandatory minimum penalty under section 775.087(2), and that constructive or vicarious possession will not support a three-year minimum mandatory sentence.
[1] A conviction for armed robbery does not automatically establish actual physical possession of a firearm for the purpose of imposing a minimum mandatory sentence.
[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 3 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“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).”
Establishes the key legal rule that constructive or vicarious possession is insufficient for the mandatory minimum penalty.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceDye pleaded no contest to armed robbery and related charges. He was sentenced to 15 years' imprisonment with a three-year minimum mandatory under sect…
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PER CURIAM.
Trent Dye appeals from the order denying his motion to correct illegal sentence. We reverse and remand for the trial court to determine whether it properly invoked section 775.087(2), Florida Statutes (1993).
Dye pleaded no contest to a charge of armed robbery and several related charges. He was sentenced to 15 years’ imprisonment with a three-year minimum mandatory pursuant to section 775.087(2). Dye asserts in his motion that his sentence is illegal because he never had actual possession of the firearm. Possession is a statutory element of the crime. The trial court summarily denied Dye’s motion indicating that the minimum mandatory period was part of the plea agreement and that the factual basis at the time of the plea established that Dye did possess, either actually or constructively, the firearm used in the robbery. The trial court attached to its order the plea agreement signed by Dye. One paragraph of the plea form, boilerplate language, acknowledges a factual basis for the plea. Another handwritten sentence notes that the three-year minimum mandatory is part of the negotiated sentence.
The issue of whether the trial court erred in its application of section 775.087(2) may be raised in a motion to correct illegal sentence. Poiteer v. State, 627 So. 2d 526 (Fla.2d DCA 1993); 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 plea agreement is insufficient to establish a factual basis for the application of the minimum mandatory penalty to Dye.
We reverse the order denying Dye’s motion and remand for the trial court to determine whether section 775.087(2) was properly invoked in this case.
FRANK, A.C.J., and PATTERSON and LAZZARA, JJ., concur.
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Citator
Cited By
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Word v. State, 682 So. 2d 642 (Fla. 2d DCA 1996)…: Members of this court have not always agreed that this issue involves an illegal sentence. But the court has consistently required that trial courts determine whether section 775.087(2), Florida Statutes, has been properly invoked. Dye v. State, 667 So. 2d 935 (Fla. 2d DCA 1996); Poiteer v. State, 627 So. 2d 526 (Fla. 2d DCA 1993). The trial court, on remand, shall determine whether Butchek manually possessed a firearm during the robbery; if it can be ascertained that he did by referencing documents in th…
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Morin v. State, 947 So. 2d 1250 (Fla. 2d DCA 2007)…clusively refute Mr. Morin’s claim or conduct an evidentiary hearing. We note that form language from Mr. Morin’s plea agreement is insufficient to establish a factual basis for the minimum mandatory penalty imposed upon Mr. Morin. See Dye v. State, 667 So. 2d 935, 936 (Fla. 2d DCA 1996). Reversed and remanded. WHATLEY and DAVIS, JJ., Concur.…
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Butchek v. State, 686 So. 2d 21 (Fla. 2d DCA 1996)…. Members of this court have not always agreed that this issue involves an illegal sentence.1 But the court has consistently required that trial courts determine whether section 775.087(2), Florida Statutes, has been properly invoked. Dye v. State, 667 So. 2d 935 (Fla. 2d DCA 1996); Poiteer v. State, 627 So. 2d 526 (Fla. 2d DCA 1993). The trial court, on remand, shall determine whether Butchek manually possessed a firearm during the robbery; if it can be ascertained that [*22] he did by referencing documents…
Authorities Cited
- Poiteer v. State, 627 So. 2d 526 (Fla. 2d DCA 1993)
- Cueto v. State, 633 So. 2d 112 (Fla. 2d DCA 1994)
- Brown v. State, 633 So. 2d 112 (Fla. 2d DCA 1994)
- Demps v. State, 649 So. 2d 938 (Fla. 5th DCA 1995)
- Odom v. State, 657 So. 2d 923 (Fla. 2d DCA 1995)