DWAYNE FILLMORE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Fillmore appeals the denial of his motion to correct an illegal sentence, arguing that his mandatory minimum three-year sentence for possession of a firearm was improper because the evidence showed he did not possess a gun but merely drove the vehicle while his co-defendant was the shooter. The court reversed, finding the case distinguishable from controlling precedent and that the trial transcript could resolve the factual dispute without an evidentiary hearing.
The court held that the mandatory minimum sentence for firearm possession was improper and reversed the trial court's summary denial of the motion to correct illegal sentence. The court found that the case was distinguishable from State v. Mancino because here the sentences resulted from trial, not a plea, and the trial transcript allegedly shows undisputed evidence that Fillmore did not possess a firearm.
[1] A defendant may challenge the imposition of a mandatory minimum sentence for possession of a firearm even after the direct appeal has been affirmed, if the challenge coul…
[2] A jury's finding that a defendant "carried, displayed, threatened to use, or attempted to use a firearm" during the commission of a crime, based on the principal theory o…
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“gain time does not accrue during the serving of a mandatory minimum sentence”
Establishes why the appeal was not moot despite sentences having been fully served, as Fillmore could still benefit from elimination of the mandatory minimum.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceFillmore was convicted of second degree murder with a firearm and attempted second degree murder with a firearm. His co-defendant was the actual shoot…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Gain Time Accrual cases and more on FLexlaw
KLEIN, J.
Defendant appeals an order summarily denying his rule 3.800(a) motion to correct illegal sentence, contending that he should not have been given a mandatory minimum three years for possession of a firearm. We reverse.
Defendant was found guilty of second degree murder with a firearm as well as attempted second degree murder with a firearm, and received lengthy sentences with a three-year mandatory minimum for possession of a firearm. Although defendant’s direct appeal was affirmed without opinion in 1997, he could still benefit from elimination of the mandatory minimum as to gain time, because gain time does not accrue during the serving of a mandatory minimum sentence. § 775.087(2)(a); Young v. State, 638 So. 2d 532 (Fla. 2d DCA 1994) (noting challenge to consecutive nature of mandatory minimum terms was not moot, though terms had been fully served, because of possible effect of gain time).
Defendant alleges that his three-year mandatory minimum was improper because the co-defendant was the shooter and defendant only drove the vehicle and did not possess a gun. With respect to each count, the verdict asked the jury, if it found defendant was guilty of that count, to determine “did he carry, display, threaten to use, or attempt to use a firearm during the commission of that crime?”. The jury checked “yes” as to each count. This language was taken from section 775.087(1), Florida Statutes, which provides for enhancement of the level of the felony.
Defendant’s argument is grounded on section 775.087(2), Florida Statutes (1993), which provides for the three-year mandatory minimum for a defendant convicted of offenses including murder and attempted murder who has “in his possession a firearm.” He alleges that he was found by the jury to have carried, displayed, etc. a firearm based only on the principal theory, which is not sufficient to impose a minimum mandatory sentence. McGill v. State, 878 So. 2d 1270 (Fla. 5th DCA 2004) (reversing firearm minimum mandatory on direct appeal); Freeny v. State, 621 So. 2d 505 (Fla. 5th DCA 1993).
The trial court summarily denied the motion on the authority of State v. Mancino, 705 So. 2d 1379 (Fla.1998); however, Mancino is distinguishable from the present case. In Mancino the mandatory minimum for possession of a firearm was imposed on a sentence resulting from a plea, and the legality of that sentence could have been determined only after an evidentiary hearing, which was not available on Mancino’s rule 3.800(a) motion. In the present case, in which the sentences were imposed following a trial, defendant alleges that the trial transcript shows that it was undisputed that he did not possess a firearm. We accordingly reverse.
STONE and TAYLOR, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Eliezer Barrientos v. State, 1 So. 3d 383 (Fla. 4th DCA 2009)…to correct an illegal sentence. We reverse and remand the matter to the trial court. We instruct the trial court to strike the three-year mandatory minimum portion of Barrientos’ thirty-year habitual offender prison sentence. See Fillmore v. State, 970 So. 2d 452 (Fla. 4th DCA 2007); Banks v. State, 949 So. 2d 353 (Fla. 4th DCA 2007). Barrientos need not be present when the trial court corrects the sentence. See Irons v. State, 851 So. 2d 798 (Fla. 2d DCA 2003). POLEN, STEVENSON and TAYLOR, JJ., concur.…
-
Jeanson Jacques v. State, 1 So. 3d 1172 (Fla. 4th DCA 2009)…ry to the state’s argument, a claim that a mandatory minimum term could not be imposed can be raised in a rule 3.800(a) motion if the issue can be determined from the face of the record without the need for an evidentiary hearing. Fillmore v. State, 970 So. 2d 452, 453 (Fla. 4th DCA 2007); Simms v. State, 949 So. 2d 373, 375 (Fla. 4th DCA 2007). See also Leath v. State, 805 So. 2d 956 (Fla. 2d DCA 2001) (finding that claim alleging an improper mandatory minimum sentence for possession of a firearm could be ra…
-
Seme v. State (Fla. 3d DCA 2023)
Authorities Cited
- State v. Mancino, 705 So. 2d 1379 (Fla. 1998)
- Freeny v. State, 621 So. 2d 505 (Fla. 5th DCA 1993)
- Hayden v. Bieluch, 878 So. 2d 1270 (Fla. 4th DCA 2004)
- Young v. State, 638 So. 2d 532 (Fla. 2d DCA 1994)