KENNETH KENNY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Kenneth Kenny appealed his sentence for armed robbery as a habitual violent felony offender, challenging the imposition of a three-year mandatory minimum for firearm possession. The court held that actual physical possession of the firearm during the offense is required for the mandatory minimum enhancement, and vacated the enhancement because the record showed only constructive or vicarious possession.
Actual physical possession of the firearm during the commission of the offense is required to impose the three-year mandatory minimum under section 775.087(2); ownership of the firearm or constructive/vicarious possession is insufficient. The three-year mandatory minimum was error and must be vacated.
[1] A three-year mandatory minimum sentence for possession of a firearm during an offense requires a factual basis demonstrating the defendant's actual possession of the fire…
[2] Ownership of a firearm used in an offense is insufficient, on its own, to support the imposition of a three-year mandatory minimum sentence under section 775.087(2), Flor…
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Join FLexlaw to unlock all legal intelligence“imposition of the three-year mandatory minimum under section 775.087(2) must be supported by a factual basis demonstrating actual possession of the firearm during commission of the offense”
Establishes the legal standard that actual possession, not constructive or vicarious possession, is required for the mandatory minimum enhancement
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Join FLexlaw to unlock all legal intelligenceKenny pled guilty to armed robbery and was adjudicated guilty as a habitual violent felony offender, sentenced to twenty years with a ten-year mandato…
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PER CURIAM.
Appellant pled guilty to the crime of armed robbery. He was adjudicated guilty and sentenced as an habitual violent felony offender to twenty years in prison with a mandatory minimum term of ten years. Pursuant to section 775.087(2), Florida Statutes (1995), the court also imposed a three-year mandatory minimum for possession of a firearm during the offense. In the instant case, appellant challenges the court’s imposition of this three-year mandatory minimum.
At both the plea and sentencing hearings appellant contended that his co-defendant, not he, was in actual possession of the firearm during the offense. Conceding that the evidence on this point was conflicting, the state argued that appellant’s ownership of the gun and the use of that gun during the offense was sufficient basis for imposition of the three-year sentence enhancement. We have previously stated that a defendant not actually armed still may be adjudicated guilty of armed robbery, but imposition of the three-year mandatory minimum under section 775.087(2) must be supported by a factual basis demonstrating actual possession of the firearm during commission of the offense. Nesbitt v. State, 677 So. 2d 1381 (Fla. 1st DCA 1996).
The record in the instant case does not demonstrate a factual 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 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.”)
Accordingly, we vacate the three-year mandatory minimum sentence and remand for further proceedings consistent with this opinion. As we stated in Nesbitt, no hearing is necessary, and appellant’s attendance is not required. In all other respects, appellant’s judgment and sentence are affirmed.
MINER, LAWRENCE and PADOVANO, JJ., concur.
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Sims v. State, 44 So. 3d 1222 (Fla. 5th DCA 2010)…6 So. 2d 875 (Fla. 5th DCA 2008); Johnson v. State, 855 So. 2d 218 (Fla. 5th DCA 2003). Evidence of ownership without physical control, constructive possession, or possession under the principal theory is insufficient. Similarly, in Kenny v. State, 693 So. 2d 1136 (Fla. 1st DCA 1997), the court reversed the imposition of the three-year mandatory minimum for possessing a firearm during the commission of an armed robbery. Recognizing that an unarmed defendant could be charged and convicted of armed robbery unde…
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Kishon Larhame Birch v. State, 248 So. 3d 1213 (Fla. 1st DCA 2018)
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German DE LOS Rios v. State, 998 So. 2d 1212 (Fla. 4th DCA 2009)…or post conviction relief, he argued that the mandatory 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 o…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Demps v. State, 649 So. 2d 938 (Fla. 5th DCA 1995)
- Nesbitt v. State, 677 So. 2d 1381 (Fla. 1st DCA 1996)