STATE OF FLORIDA, APPELLANT,
v.
JEFFERY L. COUCH, APPELLEE
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The court held that the trial court erred in imposing a sentence contrary to section 775.087, Florida Statutes, which mandates a three-year minimum prison term for aggravated assault with a deadly weapon while possessing a firearm.
The State challenged the sentence imposed on Appellee for aggravated assault with a deadly weapon while possessing a firearm. The trial court sentence…
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PER CURIAM.
The State challenges the sentence imposed on Appellee for aggravated assault with a deadly weapon while possessing a firearm. The trial court sentenced Appel-lee to two years of community control followed by three years of probation for the crime.
The State correctly asserts that the trial court erred by imposing this sentence con trary to section 775.087, Florida Statutes (2002). See State v. Keen, 782 So. 2d 528 (Fla. 1st DCA 2001); State v. Haddad, 750 So. 2d 139 (Fla. 1st DCA 2000) (noting imposition of three-year minimum mandatory prison term a nondiscretionary duty of trial court where record demonstrates defendant had a firearm in his possession); State v. Calzadas-Padron, 708 So. 2d 287 (Fla. 2d DCA 1998) (noting section 775.087(2) contains no provision permitting trial court to exercise discretion in imposing three-year minimum mandatory prison sentence once defendant convicted of certain enumerated felonies).
The crime for which Appellee was convicted is one of the enumerated felonies for which imposition of the three-year minimum sentence is mandated. See § 775.087(2)(a), Fla. Stat. (2002). Accordingly, we reverse and remand with directions that the trial court resentence Appellee consistent with the statutory mandate of a three-year minimum mandatory prison term.
REVERSED and REMANDED with directions.
WEBSTER, PADOVANO, and HAWKES, J.J., concur.
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Dunbar v. State, 89 So. 3d 901 (Fla. 2012)…if the prosecution had properly appealed the sentence as orally pronounced, the sentence would have been reversed and remanded with instructions to impose the term. See, e.g., State v. Scanes, 973 So. 2d 659, 661 (Fla. 3d DCA 2008); State v. Couch, 896 So. 2d 799 (Fla. 1st DCA 2005); State v. Strazdins, 890 So. 2d 334 (Fla. 2d DCA 2004); State v. Brendell, 656 So. 2d 594 (Fla. 5th DCA 1995). In fact, the parties agree that defendants may receive increased sentences under that procedural framework without a v…
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Gardner v. State, 30 So. 3d 629 (Fla. 2d DCA 2010)…irst and Fifth Districts have held that resentencing to impose minimum mandatory terms is required where the original sentences fail to include the nondiscretion-ary terms. See State v. Vanderhoff, 14 So. 3d 1185 (Fla. 5th DCA 2009); State v. Couch, 896 So. 2d 799 (Fla. 1st DCA 2005). Thus, unless the State has forever waived the right to obtain the mandated sentence [*634] by failing to note this error before the hearing concluded, the original sentence was subject to reversal on appeal by the State and may…
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Montrell L. Johnson v. State, 53 So. 3d 360 (Fla. 5th DCA 2011)…on. Id. at 83. We further noted that it does not offend double jeopardy principles to resen-tence a defendant to a harsher term when the original sentence was invalid. Id.; see also State v. Scanes, 973 So. 2d 659 (Fla. 3d DCA 2008); State v. Couch, 896 So. 2d 799 (Fla. 1st DCA 2005); State v. Strazdins, 890 So. 2d 334 (Fla. 2d DCA 2004); Allen v. State, 853 So. 2d 533 (Fla. 5th DCA 2003). We also reject Johnson’s suggestion that the state waived the mandatory minimum sentence. At the original sentencing hear…
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. Calzada-Padron, 708 So. 2d 287 (Fla. 2d DCA 1996)
- State v. Keen, 782 So. 2d 528 (Fla. 1st DCA 2001)
- State v. Alaa-Eldin A. Haddad, 750 So. 2d 139 (Fla. 1st DCA 2000)