GAYNETT POWELL A/K/A OMAR BROWN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant was convicted of second-degree murder and carrying a concealed firearm. The trial court erroneously imposed a three-year mandatory minimum sentence for use of a firearm without a jury finding that appellant actually used a firearm. The appellate court affirmed the conviction but reversed and remanded to strike the improper mandatory minimum sentence.
The trial court erred in imposing the three-year mandatory minimum sentence for firearm use without a jury finding that appellant used a firearm. Although the sentencing error was not preserved by objection or motion to correct, it constitutes fundamental error reviewable on appeal and must be struck.
[1] A mandatory minimum sentence for firearm use cannot be imposed absent a jury finding that a firearm was used.
[2] The improper imposition of a mandatory minimum sentence constitutes fundamental error.
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Join FLexlaw to unlock all legal intelligence“The improper imposition of a minimum mandatory sentence, "because of its inherent potential of causing or requiring 'a defendant to be incarcerated ... for a greater length of time than provided by law in the absence of ... [a] sentencing error' constitutes fundamental error."”
Establishes the legal standard that improper mandatory minimums are fundamental error regardless of preservation
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Join FLexlaw to unlock all legal intelligenceOn December 28, 1995, appellant Gaynett Powell entered a barbershop carrying a shotgun, fired several shots inside, and fled. The barbershop owner and…
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PER CURIAM.
Appellant Gaynett Powell a/k/a Omar Brown was indicted for first degree murder with a firearm and carrying a concealed firearm. Following a jury trial, appellant was found guilty of the lesser included offense of murder in the second degree and guilty of carrying a concealed firearm as charged. Appellant appeals from the judgment of conviction and sentence. We have considered those assertions of error upon which appellant challenges his judgment of conviction but conclude that we need address only appellant’s argument that the trial court erroneously imposed a 3-year mandatory minimum sentence for use of a firearm. On this issue, we agree that it was error to impose the firearm mandatory minimum absent the requisite jury finding that appellant used a firearm.
At trial, several witnesses testified that they saw appellant enter the Sixteen Street Flea Market Barbershop in Lauderhill, Florida, around noon on December 28, 1995, carrying a shotgun. He fired several shots inside the barbershop. Everyone fled the area, but a few, including the owner of the barbershop, Floyd Taylor, chased appellant. Shortly thereafter, appellant shot Taylor in the head in full view of numerous witnesses. Several of these witnesses identified appel lant as the gunman in a police lineup and later in court.
The jury found appellant guilty of the lesser-included offense of second degree murder. However, the verdict did not include a specific finding that appellant used a firearm in committing the murder. At sentencing, the trial court imposed a sixty-year term of imprisonment with a three year firearm mandatory minimum term. The state concedes, and we agree, that the mandatory minimum term for use of a firearm was erroneously imposed in the absence of a jury finding that appellant used a firearm. See State v. Hargrove, 694 So. 2d 729 (Fla.1997); Bowser v. State, 638 So. 2d 1042, 1043 (Fla. 1st DCA 1994). We reject, however, the state’s argument that we are precluded from reviewing this sentencing error on appeal since appellant failed to preserve the issue by objecting to the mandatory minimum at sentencing or filing a motion to correct the sentence. See § 924.051(3), Fla. Stat. (Supp.1996); Fla. R.App. P. 9.140(d); Fla. R.Crim. P. 3.800(b); Cf. Gordon v. State, 717 So. 2d 1069, 23 Fla. L. Weekly D1922 (Fla. 5th DCA 1998). The improper imposition of the mandatory minimum term constituted fundamental error. See Porter v. State, 702 So. 2d 257 (Fla. 4th DCA 1997); Whitehead v. State, 446 So. 2d 194 (Fla. 4th DCA 1984). Porter explained that:
The improper imposition of a minimum mandatory sentence, “because of its inherent potential of causing or requiring ‘a defendant to be incarcerated ... for a greater length of time than provided by law in the absence of ... [a] sentencing error’ constitutes fundamental error.”
Id. at 258 (citing Whitehead v. State) (quoting Reynolds v. State, 429 So. 2d 1331, 1333 (Fla. 5th DCA 1983)).
Accordingly, we affirm appellant’s judgment of conviction and sentence in all other respects but reverse the imposition of the three year minimum mandatory sentence and remand with directions to delete the three year mandatory minimum term on the second degree murder count.
REVERSED IN PART AND REMANDED WITH DIRECTIONS.
KLEIN and TAYLOR, JJ., and LABARGA, JORGE, Associate Judge, concur.
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Maddox v. State, 760 So. 2d 89 (Fla. 2000)…sentence to constitute fundamental error “because of its inherent potential of causing or requiring ‘a defendant to be incarcerated ... for a greater length of time than provided by law in the absence of ... [a] sentencing error.’ ” Powell v. State, 719 So. 2d 963, 964 (Fla. 4th DCA 1998) (quoting Porter v. State, 702 So. 2d 257 (Fla. 4th DCA 1997)) (alterations in original). Correction of these errors that are patent and serious, and therefore fundamental, at their earliest opportunity comports with the inte…
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Bain v. State, 730 So. 2d 296 (Fla. 2d DCA 1999)…econd degree felony cannot exceed ten years. See § 775.084(4)(b)2., Fla. Stat. (1995). Because the minimum mandatory portion of Bain’s sentence exceeds the maximum allowed by law, it is illegal and constitutes fundamental error. Cf. Powell v. State, 719 So. 2d 963, 23 Fla. L. Weekly D2310 (Fla. 4th DCA 1998) (holding that improper imposition of minimum mandatory sentence is reviewable as fundamental error because of inherent potential to lengthen defendant’s incarceration). Therefore, we have jurisdiction, an…
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Bryant v. State, 744 So. 2d 1225 (Fla. 4th DCA 1999)…andatory minimum term at the time of sentencing or file a timely motion to correct the sentence, the improper imposition of a mandatory minimum term constitutes fundamental error. Nelson v. State, 722 So. 2d 889 (Fla. 4th DCA 1998); Powell v. State, 719 So. 2d 963 (Fla. 4th DCA 1998); Porter v. State, 702 So. 2d 257 (Fla. 4th DCA 1997); Gibbs v. State, 623 So. 2d 551 (Fla. 4th DCA 1993); Whitehead v. State, 446 So. 2d 194 (Fla. 4th DCA 1984); Cox v. State, 530 So. 2d 464 (Fla. 5th DCA 1988). Thus, the error m…
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
- State v. Hargrove, 694 So. 2d 729 (Fla. 1997)
- Whitehead v. State, 446 So. 2d 194 (Fla. 4th DCA 1984)
- Reynolds v. State, 429 So. 2d 1331 (Fla. 5th DCA 1983)
- Porter v. State, 702 So. 2d 257 (Fla. 4th DCA 1997)
- Bowser v. State, 638 So. 2d 1042 (Fla. 1st DCA 1994)
- Lanorris D. Gordon v. State, 717 So. 2d 1069 (Fla. 5th DCA 1998)