STATE OF FLORIDA, APPELLANT,
v.
BILLY JO FERGUSON, APPELLEE
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The State appealed a sentence imposed on Ferguson for possession of a firearm by a violent career criminal, arguing the trial court erred by imposing a ten-year sentence instead of the fifteen-year minimum mandatory sentence required by statute. The court reversed, holding that section 790.235 imposes a mandatory fifteen-year minimum sentence with no judicial discretion to depart based on public safety considerations.
The minimum mandatory sentence for possession of a firearm by a violent career criminal under section 790.235 is mandatory, not discretionary. If a defendant qualifies for violent career criminal sentencing and possesses a firearm, he or she must receive the fifteen-year minimum mandatory sentence, with no judicial authority to depart based on public safety considerations.
[1] A fifteen-year minimum mandatory sentence is required for possession of a firearm by a violent career criminal under section 790.235, Florida Statutes (1995).
[2] Section 790.235, Florida Statutes (1995), defines a substantive offense, not merely a sentencing enhancement.
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Join FLexlaw to unlock all legal intelligence“the minimum mandatory sentence for possession of a firearm by a violent career criminal contained in section 790.235 is not permissive. In other words, if a defendant charged with violating section 790.235 is qualified for violent career criminal sentencing and possesses a firearm, he or she must receive the fifteen-year minimum mandatory sentence.”
Establishes the holding that the fifteen-year sentence is mandatory with no judicial discretion
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Join FLexlaw to unlock all legal intelligenceBilly Jo Ferguson pleaded guilty to possession of a firearm by a violent career criminal in violation of section 790.235, Florida Statutes (1995). It …
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BLUE, Judge.
The State appeals the sentence imposed on Billy Jo Ferguson following his guilty plea to possession of a firearm by a violent career criminal in violation of section 790.235, Florida Statutes (1995). We agree with the State’s contention that the trial court erred by not imposing the fifteen-year minimum mandatory sentence required by that statute. Accordingly, we reverse.
It is undisputed that Ferguson qualified for sentencing as a violent career criminal and that he had a firearm in his custody, control or possession.
The State argues that the minimum mandatory sentence required by section 790.235 is similar to the three-year minimum mandatory sentence required for certain offenses involving the use or possession of a firearm pursuant to section 775.087(2).
See, e.g., State v. Sesler, 386 So. 2d 293 (Fla. 2d DCA1980) (court required to sentence defendant to three-year minimum mandatory for possessing firearm during commission of an aggravated assault).
Ferguson argues that even though he qualified for violent career criminal sentencing, the court had the discretion to find that such a sentence was not necessary for the protection of the public. Ferguson relies on the line of eases holding that sentencing under the habitual offender statute is discretionary, not mandatory. See Burdick v. State, 594 So. 2d 267 (Fla.1992).
After examining the pertinent statutes, we conclude that the sentence required by section 790.235 is mandatory. As with the habitual felony offender and habitual violent felony offender statutes, the trial judge does have the authority to determine that sentencing as a violent career criminal under section 775.084(l)(c) is not necessary for the protection of the public. See § 775.084(3)(b).
However, unlike section 775.084(l)(c), section 790.235 is a substantive offense statute, not a sentencing statute. Whether a substantial prison sentence is necessary for the protection of the public is simply not a consideration under section 790.235.
Therefore, as with the three-year minimum mandatory sentence for certain offenses involving firearms, the minimum mandatory sentence for possession of a firearm by a violent career criminal contained in section 790.235 is not permissive. In other words, if a defendant charged with violating section 790.235 is qualified for violent career criminal sentencing and possesses a firearm, he or she must receive the fifteen-year minimum mandatory sentence.
The trial court erred by failing to impose the fifteen-year mandatory sentence and accordingly, we reverse. Because Ferguson entered his plea in reliance on the trial court’s offer of a ten-year habitual offender sentence, he must be given an opportunity to withdraw his plea.
Reversed and remanded for further proceedings.
DANAHY, A.C.J., and FULMER, J., concur.
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Lavon D. Jackson v. State, 729 So. 2d 947 (Fla. 1st DCA 1998)…eir unfitness to be entrusted with such dangerous instrumentalities.” In section 790.235, the legislature has created a new substantive offense which does not apply retroactively to earlier offenses but operates prospectively. Cf. State v. Ferguson, 691 So. 2d 578 (Fla. 2d DCA 1997)(holding that the minimum mandatory sentence imposed pursuant to section 790.235 was not permissive, the court stated that “section 790.235 is a substantive offense statute, not a sentencing statute”). The only punishment imposed o…
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Quintana v. State, 917 So. 2d 991 (Fla. 3d DCA 2005)…provided to him pursuant to an erroneous impression by all concerned — the State, his counsel and the [*992] court — that the fifteen-year minimum mandatory sentence mandated for a violation of section 790.235 could be waived, see State v. Ferguson, 691 So. 2d 578 (Fla. 2d DCA 1997)(“the minimum mandatory sentence for possession of a firearm by a violent career criminal contained in section 790.235 is not permissive”)(emphasis added), appellant entered guilty pleas on all charges in exchange for a sentencing…
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Elbert v. State, 705 So. 2d 651 (Fla. 2d DCA 1998)…discretionary, the [*652] record shows that Elbert entered his plea in reliance on the trial court’s offer of a twenty-five-year habitual offender sentence; therefore, Elbert must be given an opportunity to withdraw his plea. See State v. Ferguson, 691 So. 2d 578 (Fla. 2d DCA 1997). Accordingly, we reverse and remand for the trial court to allow Elbert to withdraw his plea. The trial court’s order is affirmed as to all other claims raised in the motion. . Affirmed in part, reversed in part, and remanded. P…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Burdick v. State, 594 So. 2d 267 (Fla. 1992)
- State v. Carnell Sesler, 386 So. 2d 293 (Fla. 2d DCA 1980)