JOHNNIE LAMM, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Johnnie Lamm appealed his conviction for possession of a firearm by a convicted felon. The court affirmed his conviction but vacated the mandatory minimum three-year sentence because the jury did not make a specific finding of actual possession, which is required under Florida law to impose the mandatory minimum.
A mandatory minimum sentence under Florida Statutes section 775.087(2)(a)1 cannot be imposed absent a specific jury finding of actual possession. The court affirmed the conviction but struck the mandatory minimum portion of the sentence and remanded for entry of a corrected sentencing order.
[1] A jury's general verdict of guilt on a charge of possession of a firearm by a convicted felon does not, by itself, establish actual possession for the purpose of imposing…
[2] A mandatory minimum sentence for firearm possession cannot be imposed absent a specific jury finding of actual possession.
Previewing 2 of 4 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 jury found Lamm guilty as charged in the information, but did not make any finding that he actually possessed the firearm.”
Establishes the critical fact that the jury's general guilty verdict lacked a specific finding on the type of possession
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceLamm was charged with unlawfully owning or having in his care, custody, possession or control a firearm. The jury was instructed on constructive, join…
The full statement of facts, procedural history, and disposition for this case are member content.
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PALMER, J.
Johnnie Lamm (“Lamm”), appeals his judgment and sentence which were imposed by the trial court after a jury found him guilty of committing the crime of possession of a firearm by a convicted felon. Finding no reversible error with regard to Lamm’s judgment of guilt, we affirm. However, since the jury failed to specifically find that Lamm actually possessed a firearm, we strike the portion of Lamm’s sentence which imposed a mandatory minimum term of three-years imprisonment.
Lamm was charged by information with possession óf a firearm by a convicted felon.1 The information alleged that Lamm did “unlawfully own or have in his care, custody, possession or control, a certain firearm.” The jury was instructed on constructive and joint possession, as well as actual possession, of a firearm. The jury found Lamm guilty as charged in the information, but did not make any finding that he actually possessed the firearm.
At the sentencing hearing, Lamm argued that since the jury had not made a specific finding whether he had actual, joint, or constructive possession of the firearm, the trial court could not impose a mandatory minimum three-year sentence pursuant to section 775.087(2)(a)l. of the Florida Statutes. Notwithstanding Lamm’s argument, the trial court sentenced him to a term of 43 months in the Department of Corrections, including a three-year mandatory minimum sentence. This sentence was improper. In Johnson v. State, 855 So. 2d 218 (Fla. 5th DCA 2003), we held that the imposition of a mandatory minimum sentence was error absent a jury finding of actual possession. As the Supreme Court noted in State v. Hargrove, 694 So. 2d 729 (Fla. 1997), even when the use of a firearm is uncontested, there must be a specific finding by the jury because the jury is the fact finder and use of a firearm is a finding of fact.
Accordingly, we strike the three-year mandatory minimum portion of Lamm’s sentence and direct that upon remand the trial court enter a corrected sentencing order. The defendant need not be present for this correction of sentence. See Trumbower v. State, 849 So. 2d 1183 (Fla. 2d DCA 2003)(holding that defendant did not need to be present for resentencing when the only change required on remand was to remove a three-year mandatory minimum term).
Judgment AFFIRMED; sentence AFFIRMED as corrected; cause REMANDED for entry of a corrected sentencing order. SAWAYA, C.J., and PETERSON, J., concur. . See § 790.23, Fla. Stat. (2001).
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Citator
Cited By
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Wiggins v. State, 992 So. 2d 363 (Fla. 5th DCA 2008)…). This fundamental error in the judgment should be corrected by the trial court on remand by way of entry of a corrected judgment. Given the ministerial nature of the correction, the defendant need not be present for such correction. Lamm v. State, 871 So. 2d 918 (Fla. 5th DCA 2004). AFFIRMED; remanded for entry of a corrected judgment to reflect the defendant’s conviction for second degree murder with a firearm. ORFINGER and TORPY, JJ„ concur.…
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Montealegre v. State, 109 So. 3d 1238 (Fla. 5th DCA 2013)…DCA 2007); Davis v. State, 529 So. 2d 1251, 1252 (Fla. 5th DCA 1988). Given the ministerial nature of the correction, Montealegre need not be present for this correction. See Wiggins v. State, 992 So. 2d 363, 364 (Fla. 5th DCA 2008); Lamm v. State, 871 So. 2d 918, 919 (Fla. 5th DCA 2004). [*1239] AFFIRMED; REMANDED FOR ENTRY OF CORRECTED JUDGMENT. ORFINGER, C.J., SAWAYA and COHEN, JJ., concur.…
Authorities Cited
- State v. Hargrove, 694 So. 2d 729 (Fla. 1997)
- Jama Jamar Johnson v. State, 855 So. 2d 218 (Fla. 5th DCA 2003)
- Fabiani v. Fabiani, 849 So. 2d 1183 (Fla. 4th DCA 2003)
- Trumbower v. State, 849 So. 2d 1183 (Fla. 2d DCA 2003)