WILLIE FRED SIMS, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 5th DCA | 2010-10-01
No. 5D09-1602
MONACO, C.J., and PALMER, J., concur.
44 So. 3d 1222 Florida District Court of Appeal, Fifth District (2010) Caution
Cited by 11 cases

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.

Synopsis

Willie Sims appeals his conviction for attempted second-degree murder, aggravated battery with a firearm, aggravated assault with a firearm, and possession of a firearm by a convicted felon. The court reverses the imposition of a 20-year mandatory minimum sentence for firearm discharge, holding that the state failed to prove Sims personally discharged the firearm, and remands for resentencing under the 10-year mandatory minimum for firearm possession.


Holding

The court held that the 20-year mandatory minimum for discharge of a firearm cannot be imposed without proof that the defendant personally discharged the firearm. Because the state presented no direct or circumstantial evidence establishing that Sims, rather than his codefendant Brown, fired the shots, the court reversed the 20-year sentence and remanded for resentencing under the 10-year mandatory minimum for firearm possession on the attempted second-degree murder count and the 3-year mandatory minimum for firearm possession on the aggravated assault count.


Headnotes

[1] To impose the twenty-year minimum mandatory sentence for discharging a firearm during a felony, the state must prove the defendant personally discharged the firearm.

[2] A defendant's conviction for possessing a firearm during the commission of a felony subjects them to a ten-year minimum mandatory sentence.

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Key Quotes

“This necessarily requires proof that the defendant personally discharged the firearm in order to impose the twenty-year mandatory minimum. Proof based on a principal theory will not suffice.”

Establishes the core holding that personal discharge, not constructive liability or presence, is required for the 20-year enhancement

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Facts & Procedural History

After losing substantial money to Bobby Sullivan in a card game, Sims and a codefendant, Jerrail Brown, arrived at Sullivan's apartment armed with fir…

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Opinion of the Court
COHEN, J.

COHEN, J.

Willie Sims appeals his conviction, following a jury trial, for the offenses of attempted second-degree murder, aggravated battery with a firearm, aggravated assault with a firearm, and possession of a firearm by a convicted felon.1 The jury returned special verdicts finding Mr. Sims possessed and discharged a firearm while committing attempted second-degree murder, and possessed a firearm while committing aggravated assault.

The events leading up to the charges began with a card game in which the victim, Bobby Sullivan, won a substantial amount of money from Mr. Sims. Mr. *1224Sullivan went home after the game and was there for a number of hours when he heard a knock at the back door of his apartment. Mr. Sullivan opened the door to see Mr. Sims and Jerrail Brown, Mr. Sims’ eodefendant. Both carried firearms. Mr. Sullivan quickly closed and locked the door. When the two defendants attempted to break through the door, he tried to buttress the door with a table. When it became apparent the door would not hold, Mr. Sullivan moved toward a window in an effort to escape. As he did so, three shots were fired through the middle of the closed door, two of which struck him. He jumped through the window and ran to safety. Mr. Sullivan could not identify which of the two defendants outside the door had fired the shots.

Two issues are raised on appeal, only one of which merits discussion. Mr. Sims argues the evidence was insufficient to support the imposition of the twenty-year minimum mandatory sentence on the attempted second-degree murder and aggravated assault counts, pursuant to subsection 775.087(2)(a)l., Florida Statutes (2008),2 because there was no evidence that he discharged a firearm.3 We agree and reverse for the trial court to impose the ten-year minimum mandatory for possession of a firearm on the attempted second-degree murder charge and the three-year minimum mandatory for the aggravated assault count, pursuant to that same statute.4

In the context of possession of a firearm by a convicted felon, this court has interpreted subsection 775.087(2)(a)l.’s use of “actually possessed” to require evidence that the defendant actually carried the firearm in order to impose the three-year minimum mandatory. See Redding v. State, 996 So.2d 875 (Fla. 5th DCA 2008); Johnson v. State, 855 So.2d 218 (Fla. 5th DCA 2003). Evidence of ownership without physical control, constructive possession, or possession under the principal theory is insufficient.

Similarly, in Kenny v. State, 693 So.2d 1136 (Fla. 1st DCA 1997), the court reversed the imposition of the three-year mandatory minimum for possessing a firearm during the commission of an armed robbery. Recognizing that an unarmed defendant could be charged and convicted of armed robbery under a principal theory, the court held that imposing the minimum mandatory provision of subsection 775.087(2) required a “factual basis demonstrating actual possession of the firearm during commission of the offense.” Id. at 1136-37.

Like subsection 775.087(2)(a)l., the language of subsection 775.087(2)(a)2. also demonstrates the legislative intent that only the person who actually discharges a firearm during the commission of the enumerated offenses be subject to an increased term of imprisonment. The statute provides:

2. Any person who is convicted of a felony or an attempt to commit a felony listed in sub-subparagraphs (a)l.a.-q., regardless of whether the use of a weap*1225on is an element of the felony, and during the course of the commission of the felony such person discharged a “firearm” or “destructive device” as defined in s. 790.001 shall be sentenced to a minimum term of imprisonment of 20 years.

(Emphasis added).

Within the context of subsection 775.087(2)(a)2., “such person” clearly refers back to “[a]ny person who is convicted.... ” This necessarily requires proof that the defendant personally discharged the firearm in order to impose the twenty-year mandatory minimum. Proof based on a principal theory will not suffice.5

Evidence that a defendant discharged a firearm during the commission of a crime may be established circumstantially. Had Mr. Sims been the only defendant observed in possession of a firearm, had there been forensic evidence establishing the recovered shell casings came from both weapons, or had testing been done to establish the presence of gunshot residue on Mr. Sims, the result very well might be different. No such evidence was presented. Instead, the State relied on the fact that Mr. Sims was seen holding a gun and its theory that he was attempting to recover his gambling losses. This was insufficient.

When the State relies upon circumstantial evidence to establish a fact, it must be consistent with guilt and inconsistent with a reasonable hypothesis of innocence. Sibold v. State, 889 So.2d 1000 (Fla. 5th DCA 2004). Other than speculation as to Mr. Sims’ motive, the State presented no direct or circumstantial evidence to establish that Mr. Sims, rather than Mr. Brown, fired the shots into the apartment. Consequently, the trial court erred in imposing the twenty-year mandatory minimum under subsection 775.087(2)(a)2. However, the jury’s finding that Mr. Sims possessed a firearm during the commission of an attempted second-degree murder and aggravated assault subjects him to the ten-year minimum mandatory provision on the attempted second-degree murder, and the three-year minimum mandatory on the aggravated assault, pursuant to subsection 775.087(2)(a)l.6 Accordingly, we reverse and remand for resentencing consistent with this opinion.

REVERSED and REMANDED.

MONACO, C.J., and PALMER, J., concur.


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Citator

Cited By

  • Chavers v. State, 112 So. 3d 594 (Fla. 4th DCA 2013)
    …st make a clear finding that the defendant discharged the firearm to apply the sentence enhancement. Parker v. State, 921 So. 2d 812, 813 (Fla. 4th DCA 2006). Appellant relies on Lemus v. State, 33 So. 3d 774 (Fla. 4th DCA 2010), and Sims v. State, 44 So. 3d 1222 (Fla. 5th DCA 2010), to assert that the twenty-year minimum mandatory sentence should be reversed. Both cases are distinguishable. In Lemus, the criminal episodes were spatially and temporally distinct. 33 So. 3d at 776. In Sims, no evidence existed…
  • Harris v. State, 160 So. 3d 913 (Fla. 1st DCA 2015)
    …a firearm. She argues the circumstantial evidence of her fingerprints on the jewelry box drawer was insufficient to establish that she actually possessed any of the guns that were missing from a closet in the same room. She relies on Sims v. State, 44 So. 3d 1222 (Fla. 5th DCA 2010), which held that where a victim testified there were two gunmen, but the victim did not see who fired the shots, there was insufficient evidence to support the imposition of a twenty-year minimum mandatory sentence for dischargin…
    1 / 2
  • Squire v. State, 278 So. 3d 153 (Fla. 4th DCA 2019)

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