DERRICK POWELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Derrick Powell appealed his convictions for first-degree felony murder, armed robbery, and armed burglary. The court affirmed his convictions but struck the three-year minimum-mandatory sentences for firearm use and vacated a restitution judgment imposed during the appellate process.
The three-year minimum-mandatory sentences for firearm use are stricken because evidence did not conclusively establish that Powell had actual possession of a firearm during commission of the crimes. The restitution judgment is vacated because the trial court lacked jurisdiction to modify sentences during the appellate process. The claim regarding credit for time served is not preserved for appeal because it was not raised in the trial court.
[1] A three-year minimum-mandatory sentence for use of a firearm is improperly applied when the evidence does not conclusively establish the defendant's actual possession of…
[2] A trial court lacks jurisdiction to modify a defendant's sentence by entering a restitution judgment while an appeal is pending.
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“the three-year minimum mandatory provision for use of a firearm was improperly applied to those offenses, because the evidence did not conclusively place a gun in Powell's hand, or otherwise in his actual possession, during the commission of the crimes herein”
Establishes the standard that minimum-mandatory firearm enhancement requires actual possession, not merely armed offenses
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Join FLexlaw to unlock all legal intelligencePowell was convicted by jury of first-degree felony murder, armed robbery, and armed burglary. The trial court imposed three-year minimum-mandatory se…
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THREADGILL, Acting Chief Judge.
The appellant, Derrick Powell, challenges his judgments and sentences for first-degree felony murder, armed robbery, and armed burglary. He has presented six issues for review; however, we find merit only in his claim of various sentencing errors. We, therefore, affirm Powell’s convictions, but strike and/or vacate portions of his sentences.
Powell contends that, contrary to the jury verdict which found him guilty of both robbery while armed and burglary while armed, the written judgment inaccurately reflects that he was found guilty of robbery with a firearm and burglary with a firearm. As a result of that alleged inaccuracy, he argues that the trial court, pursuant to section 775.087(2), Florida Statutes (1993), erroneously imposed a three-year minimum-mandatory sentence on each of those convictions for the use of a firearm. Although Powell was properly convicted of armed robbery and armed burglary as a principal in the first degree pursuant to section 777.011, Florida Statutes (1993) — and the written judgment accurately reflects those convictions — the three-year minimum mandatory provision for use of a firearm was improperly applied to those offenses, because the evidence did not conclusively place a gun in Powell’s hand, or otherwise in his actual possession, during the commission of the crimes herein. See State v. Rodriguez, 602 So. 2d 1270 (Fla.1992). For that reason, the three-year minimum-mandatory sentences imposed in this instance are stricken.
The record also shows that, while the instant appeal was pending, the trial court, pursuant to section 775.089, Florida Statutes (1993), entered a written restitution judgment requiring Powell to pay, jointly and severally with his codefendants, the amount of $10,000 to the Crimes Compensation Trust Fund. The trial court did not have jurisdiction to modify Powell’s sentences in that way. See Dailey v. State, 575 So. 2d 237, 238 (Fla. 2d DCA 1991); Critton v. State, 619 So. 2d 495, 497 (Fla. 1st DCA 1993). The restitution judgment is, therefore, vacated. See Dailey; Critton.
Powell also claims he was given improper credit against his current sentences for time served. It is impossible to discern from the face of this record whether there was any error in that regard. Since, however, this issue was not raised in the trial court, see State v. Mancino, 714 So. 2d 429, 433 (Fla.1998), it was not preserved for appellate review, see Davis v. State, 704 So. 2d 681, 684 (Fla. 1st DCA 1997).
Based on the foregoing, the three-year minimum-mandatory sentences are stricken, and the restitution judgment is vacated. Powell’s convictions and the remaining portions of his sentences are otherwise affirmed.
Affirmed in part, stricken in part, vacated in part.
NORTHCUTT and GREEN, JJ., Concur.
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Citator
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Garrett v. State, 788 So. 2d 328 (Fla. 4th DCA 2001)…court to impose a three-year minimum mandatory sentence pursuant to Florida Statutes section 775.087(2)(1997). See State v. Rodriguez, 602 So. 2d 1270 (Fla.1992); Jenkins v. State, 448 So. 2d 1060, 1062 (Fla. 4th DCA 1984); see also Powell v. State, 724 So. 2d 1207, 1207-08 (Fla. 2d DCA 1998). Moreover, the State concedes that the improper imposition of a three-year minimum mandatory for use of a firearm has been held to constitute “fundamental error.” See Porter v. State, 702 So. 2d 257, 258 (Fla. 4th DCA 199…
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Abel Miranda v. State, 113 So. 3d 51 (Fla. 2d DCA 2013)…eup. . Miranda was convicted of second-degree murder with a firearm. The State concedes that it failed to prove Miranda actually possessed a firearm and that the firearm portion of the judgment should be stricken. See § 775.087(1); Powell v. State, 724 So. 2d 1207, 1207-08 (Fla. 2d DCA 1998). . Although he argues an impermissible stacking of inferences on appeal, see Miller v. State, 770 So. 2d 1144, 1149 (Fla.2000), Miranda’s motion for judgment of acquittal did not include an inference-stacking argument. T…
Authorities Cited
- State v. Mancino, 714 So. 2d 429 (Fla. 1998)
- State v. Anibal Rodriguez, 602 So. 2d 1270 (Fla. 1992)
- Flint v. State, 704 So. 2d 681 (Fla. 2d DCA 1997)
- Dailey v. State, 575 So. 2d 237 (Fla. 2d DCA 1991)
- Critton v. State, 619 So. 2d 495 (Fla. 1st DCA 1993)