ARNOLD SYLVESTER LINDSAY, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 1st DCA | 2009-01-09
No. 1D07-1009
WOLF, LEWIS, and ROBERTS, JJ., concur.
1 So. 3d 270 Florida District Court of Appeal, First District (2009) Positive Treatment
Cited by 10 cases

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Synopsis

Lindsay appeals his 15-year minimum mandatory sentence under Florida's 10/20/Life statute, arguing the trial court erred by failing to submit the question of actual firearm possession to the jury. The First District Court of Appeal affirms the sentence under harmless error analysis but certifies a question of great public importance regarding the applicability of Galindez v. State to actual possession findings.


Holding

The court affirmed the minimum mandatory sentence, finding the error harmless. Under the Galindez harmless error test, no reasonable jury could have found possession without finding actual possession given the eyewitness testimony, the lack of rebuttal evidence, the jury instruction on actual possession, and the jury's guilty verdict "as charged."


Headnotes

[1] The failure to submit the question of actual possession of a firearm to the jury for a special finding constitutes error when imposing a mandatory minimum sentence under…

[2] Harmless error analysis applies to sentencing enhancement errors that violate a defendant's Sixth Amendment right to a jury trial.

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Key Quotes

“The question of whether an accused actually possessed a firearm while committing a felony is a factual matter properly decided by the jury. Although a trial judge may make certain findings on matters not associated with the criminal episode when rendering a sentence, it is the jury's function to be the finder of fact with regard to matters concerning the criminal episode.”

Establishes the foundational principle from State v. Overfelt that jury findings on actual possession during criminal episodes are constitutionally required.

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Facts & Procedural History

Appellant Lindsay was charged with a felony and accused of actually possessing a firearm during the commission of that felony. Three eyewitnesses test…

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Appellant seeks review of the trial court’s imposition of a B-year minimum mandatory sentence pursuant to the 10/20/ Life statute. Specifically, appellant alleges the imposition constituted error because the jury was not given a special interrogatory to decide the question of actual possession. We agree with appellant that the failure to submit the question of actual possession to the jury amounted to error, but we find the error to be harmless. We understand that a number of earlier cases have determined that harmless error cannot be found regardless of the overwhelming evidence presented at trial establishing the matter or the inclusion of the term “actual possession” in appellant’s charging document. See Bundrage v. State, 814 So.2d 1133 (Fla. 2d DCA 2002) (recognizing that even overwhelming evidence cannot excuse the lack of a jury finding on the question of possession of a firearm for purposes of the 10/20/Life statute); see also Miller v. State, 838 So.2d 644 (Fla. 1st DCA 2003) (citing Bundrage and reversing the imposition of appellant’s minimum mandatory); Thompson v. State, 862 So.2d 955 (Fla. 2d DCA 2004) (reversing the imposition of appellant’s minimum mandatory because “[t]he special verdict form— not allegations in an information — indicates when a jury finds a weapon has been used.”) (citing State v. Tripp, 642 So.2d 728, 730 (Fla.1994)).

However, pursuant to the supreme court’s recent application of the harmless error doctrine to similar errors regarding the lack of a jury finding in Galindez v. State, 955 So.2d 517 (Fla.2007), we affirm the imposition of appellant’s minimum mandatory but certify a question of great public importance concerning the applicability of Galindez to situations involving failure to procure a jury finding regarding actual possession of a firearm.

In Galindez, the supreme court considered the inclusion of 80 sexual penetration points on appellant’s scoresheet and determined the inclusion amounted to error because the jury had failed to make a specific finding on the issue in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Id. at 521. After finding error, the supreme court held for the first time in Florida that the harmless error analysis must be applied to Apprendi/Blakely errors, and, upon finding that a reasonable jury could not have found that the points were not justified, the court upheld appellant’s original sentence. Id. at 524.

Relying on Galindez, the State argues this court is required to perform a harmless error analysis on sentencing enhancement errors such as the one evidenced in the present case. In contrast, appellant asserts the holding may only apply to Apprendi/Blakely errors. Admittedly, Galindez expressly confines its holding to App'rendi/Blakely claims. Id. at *272524. However, Florida case law controlling this issue, while decided prior to Ap-prendi/Blakely, relies on the same principles as Apprendi/Blakely and should, thus, be equally affected by the Galindez decision.

In Apprendi, the United States Supreme Court held that a jury, not a judge, must determine any facts, other than a prior conviction, that may be used to enhance a defendant’s sentence or run afoul of the defendant’s Sixth Amendment right to a jury trial. 530 U.S. at 497, 120 S.Ct. 2348. In Florida, the requirement that a jury determine the facts supporting an enhancement rested on the same principles espoused in Apprendi. Namely, in State v. Overfelt, 457 So.2d 1385, 1387 (Fla.1984), a holding pre-dating the United States Supreme Court’s holding in Apprendi, the Florida Supreme Court ruled, in a similar fashion as the Apprendi court, that a jury, not a judge, is the ultimate fact-finder in a criminal prosecution and, thus, a judge’s determination of factual issues affecting a defendant’s sentence violates the defendant’s right to a trial by jury. The court explained,

The question of whether an accused actually possessed a firearm while committing a felony is a factual matter properly decided by the jury. Although a trial judge may make certain findings on matters not associated with the criminal episode when rendering a sentence, it is the jury’s function to be the finder of fact with regard to matters concerning the criminal episode. To allow a judge to find that an accused actually possessed a firearm when committing a felony in order to apply the enhancement or mandatory sentencing provisions of section 775.087 would be an invasion of the jury’s historical function and could lead to a miscarriage of justice ....

(Emphasis added). The supreme court, in Galindez, confirmed that the holdings of Apprendi and Galindez rely on the same consideration, the right to a jury trial, by stating:

[I]n [Washington v.] Recuenco, [548 U.S. 212, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006) ] the Supreme Court reversed the Washington Supreme Court’s holding that harmless error analysis does not apply to Apprendi error. Accordingly, to the extent some of our pre-Apprendi decisions may suggest that the failure to submit factual issues to the jury is not subject to harmless error analysis, Recuenco has superseded them. See, e.g., State v. Estevez, 753 So.2d 1, 7 (Fla.1999) (holding that even where the evidence is uncontroverted, to sentence a defendant to a minimum mandatory sentence for trafficking, the jury must make express findings of the amount of cocaine involved); State v. Hargrove, 694 So.2d 729, 730 (Fla.1997) (holding that even where evidence regarding the use of a firearm is unrebut-ted, to impose mandatory minimum sentence, a jury must make that finding); State v. Overfelt, 457 So.2d 1385, 1387 (Fla.1984) (holding that to enhance a sentence because of the defendant’s use of a firearm, the jury must find the defendant guilty of a crime involving a firearm or otherwise specifically find that a firearm was used).

(Emphasis added).

In Galindez, the supreme court held that the harmless error test for Apprendi errors required courts to determine if “the failure to have the jury make the victim injury finding ... contributed to the conviction or sentence — in other words, whether the record demonstrates beyond a reasonable doubt that a rational jury would have found [the fact necessary for the enhancement].” 955 So.2d at 523.

*273Applying this test to the present case, any error is harmless. Three eyewitnesses testified that appellant had the gun in his waistband and that he pulled the gun out of his waistband to aim it at the victim. No testimony was presented to rebut this evidence and the jury found appellant “possessed” the gun. Further, the jury was informed in the charging document that the State intended to prove appellant was in actual possession of the firearm. In addition, the jury was correctly instructed that actual possession may be found where the evidence shows that “the thing [possessed] is in the hand of or on the person or that the thing is so close as to be within ready reach.” See, e.g., Reynolds v. State, 983 So.2d 1192, 1194 (Fla. 3d DCA 2008) (actual possession requires the State prove the thing possessed was in ready reach or under control of the person). Last, the jury found appellant guilty “as charged.” Based on the underlying facts, no reasonable jury could have found possession by appellant without finding appellant was in actual possession of the gun, regardless of whether the jury believed the gun to be in appellant’s waistband or in his hands. Accordingly, under a harmless error analysis, we affirm.

However, recognizing that the extension of Galindez raises an issue of great public importance, we certify the following question:

BASED ON THE REASONING OF GALINDEZ V. STATE, 955 So.2d 517 (Fla.2007), MAY A COURT FIND THAT THE FAILURE TO PROVIDE A JURY WITH AN INTERROGATORY REGARDING THE QUESTION OF ACTUAL POSSESSION OF A FIREARM CONSTITUTES HARMLESS ERROR WHERE NO REASONABLE JURY COULD HAVE FOUND THE DEFENDANT GUILTY WITHOUT FINDING ACTUAL POSSESSION OF A FIREARM?

AFFIRMED.

WOLF, LEWIS, and ROBERTS, JJ., concur.


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Citator

Cited By

  • LEE v. State, 130 So. 3d 707 (Fla. 2d DCA 2013)
    …tion very similar to those in this case. Gentile and other cases have extended the harmless error analysis in Galindez v. State, 955 So. 2d 517 (Fla.2007), to this context. See Knight v. State, 6 So. 3d 733, 735 (Fla. 2d DCA 2009); Lindsay v. State, 1 So. 3d 270 (Fla. 1st DCA 2009); see also Gentile, 87 So. 3d at 58 (“[A]ny error in the jury’s failure to make a more specific finding is clearly harmless because of the overwhelming evidence that he used a deadly weapon.”). We admit some concern that [*711] th…
    1 / 2
  • Corderro Ryan Britten v. State, 181 So. 3d 1215 (Fla. 1st DCA 2015)
    …context of an Apprendi or Blakely error, we conclude that a failure To obtain a jury finding can be determined to be harmless beyond a reasonable doubt in the case of an Alleyne error.”) (internal citations and footnotes omitted); Lindsay v. State, 1 So. 3d 270 (Fla. 1st DCA) (applying Galindez to affirm mandatory minimum term for possession of a firearm under the 10/20/Life statute), rev. denied, 6 So. 3d 52 (Fla.2009). An Alleyne error is harmless if the record demonstrates beyond a reasonable doubt that…
  • Daniel v. State, 271 So. 3d 1214 (Fla. 1st DCA 2019)
    …t had to be found by the jury pursuant to Apprendi v. New Jersey, 530 U.S. 466 (2000), was harmless in light of the evidence, which showed that the jury would have found the stated factors if they had been in the instructions); Lindsay v. State, 1 So. 3d 270 (Fla. 1st DCA 2009), rev. den’d 6 So. 3d 52 (Fla. 2009) (permitting imposition of a minimum mandatory sentence even though the court erroneously failed to give the jury a special interrogatory to decide the question of actual possession of a fi…

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