WILLIE PERRY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Willie Perry was convicted of kidnapping, carjacking with a firearm, sexual battery, and aggravated fleeing and eluding. The appellate court affirmed his convictions but reversed and remanded for resentencing because consecutive mandatory minimum sentences for armed kidnapping and carjacking violated Florida law when the firearm was not fired and the crimes were part of a single criminal episode.
The trial court did not err in restricting the defense argument about co-defendant Johnson, and even if error occurred, no prejudice resulted. The trial court erred in imposing consecutive ten-year mandatory minimum sentences because Florida law prohibits consecutive mandatory minimum sentences in a single criminal episode where a firearm is used but not fired.
[1] A trial court does not commit reversible error by restricting defense counsel's closing argument regarding a co-defendant's prosecution status if the jury is otherwise ma…
[2] Consecutive mandatory minimum sentences for firearm possession are prohibited when a firearm is used but not fired during a single criminal episode.
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“imposition of consecutive mandatory minimum sentences of any duration is prohibited in a case involving a single criminal episode during which a firearm is used but not fired”
Establishes the controlling legal principle from section 775.087(2)(d), Florida Statutes
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Join FLexlaw to unlock all legal intelligencePerry was convicted of kidnapping, carjacking with a firearm, sexual battery, and aggravated fleeing and eluding a police officer. The jury found that…
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PER CURIAM.
Appellant Willie Perry timely appeals convictions of kidnapping, carjacking with a firearm, sexual battery, and aggravated fleeing and eluding a police officer. We are not persuaded by Perry’s argument that the trial court erred in restricting defense counsel’s closing argument as to whether co-defendant Johnson could have been tried as an adult. Though defense counsel was not allowed to specifically argue that Johnson could have been tried as an adult, counsel made it clear to the jury that Johnson was not prosecuted in the same way Perry was. Even if there was error, no prejudice resulted.
We remand to correct a sentencing error. The jury found that Perry actually possessed a firearm during the course of the armed kidnapping and the carjacking. For his possession of a firearm, the trial court imposed a ten-year mandatory minimum for armed kidnapping and a consecutive ten-year mandatory minimum for carjacking with a firearm. Case law interpreting section 775.087(2) (d), Florida Statutes, holds that imposition of consecutive mandatory minimum sentences of any duration is prohibited in a case involving a single criminal episode during which a firearm is used but not fired. See Church v. State, 967 So. 2d 1073 (Fla. 2d DCA 2007); see also State v. Sousa, 903 So. 2d 923 (Fla.2005); Irizarry v. State, 946 So. 2d 555 (Fla. 5th DCA 2007). As the firearm in the instant case was never fired, and the kidnapping and carjacking were not separated by any temporal or spatial breaks, the trial court erred in sentencing Perry to consecutive ten-year mandatory minimum sentences as they were part of a single criminal episode.
We therefore affirm Perry’s convictions but reverse for re-sentencing as to the consecutive ten-year mandatory minimum sentences for armed kidnapping and carjacking with a firearm.
Affirmed and Remanded.
STONE, POLEN and MAY, JJ., concur.
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Leronnie Lee Walton v. State, 106 So. 3d 522 (Fla. 1st DCA 2013)…stead, the foundation for our decision was Irizarry v. State, 946 So. 2d 555 (Fla. 5th DCA 2006), which has been followed by at least two other district courts of appeal. See Roberts v. State, 990 So. 2d 671, 675 (Fla. 4th DCA 2008); Perry v. State, 973 So. 2d 1289, 1289-90 (Fla. 4th DCA 2008); Church v. State, 967 So. 2d 1073, 1075 (Fla. 2d DCA 2007). In Irizarry, the Fifth District held that Christian and Thomas — decisions that predate section 775.087(2)(d) — “still apply in determining when minimum mandat…
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Roberts v. State, 990 So. 2d 671 (Fla. 4th DCA 2008)…for any other felony offense. It is now established that imposition of consecutive mandatory minimum sentences is prohibited where the convictions arise out of a single criminal episode during which a firearm is used but not fired. Perry v. State, 973 So. 2d 1289, 1289-90 (Fla. 4th DCA 2008); Irizarry v. State, 946 [*675] So. 2d 555 (Fla. 5th DCA 2006). In sentencing Roberts, the trial court relied on the supreme court’s holding in State v. Sousa, 903 So. 2d 923 (Fla.2005). However, in Irizarry, Judge Griffi…
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Lanham v. State, 60 So. 3d 532 (Fla. 1st DCA 2011)…his weapon. See State v. Sousa, 903 So. 2d 923, 926 (Fla.2005); State v. Christian, 692 So. 2d 889, 890-91 (Fla.1997). In addition, there was an insufficient temporal or spatial break to constitute two separate criminal episodes. See Perry v. State, 973 So. 2d 1289 (Fla. 4th DCA 2008); Roberts v. State, 990 So. 2d 671, 675 (Fla. 4th DCA 2008); Irizarry v. State, 946 So. 2d 555 (Fla. 5th DCA 2006). Appellant need not be present for the ministerial act of correcting his sentences. REVERSED and REMANDED for ent…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Sousa, 903 So. 2d 923 (Fla. 2005)
- Sigfredo Irizarry v. State, 946 So. 2d 555 (Fla. 5th DCA 2006)
- Shawntrell Church v. State, 967 So. 2d 1073 (Fla. 2d DCA 2007)