KILIEN GEROME CESAR, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Kilien Gerome Cesar was convicted of robbery with a firearm and sentenced under Florida's 10-20-life statute to ten years with a ten-year mandatory minimum. The Fourth District Court of Appeal affirmed the robbery conviction but reversed the sentencing enhancement, finding the State failed to prove Cesar actually possessed a firearm—the evidence showed only that his accomplice had a gun and that Cesar's gun appeared to be a toy.
The conviction for robbery was affirmed under the principal theory (accomplice liability) because the evidence showed the accomplice possessed a firearm. However, the 10-20-life sentencing enhancement was vacated because the State failed to prove the defendant actually possessed a firearm; possession of a firearm by a codefendant is insufficient to warrant the mandatory minimum sentence, and a toy gun does not constitute a firearm under the statute.
[1] A defendant's conviction for armed robbery may be sustained under a principal theory even if the defendant did not personally possess a firearm, provided a codefendant po…
[2] Possession of a firearm by a codefendant is insufficient to impose a mandatory minimum sentence under the 10-20-life statute; the State must prove the defendant's actual…
Previewing 2 of 5 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“possession of a firearm by a codefendant is sufficient to convict a defendant of armed robbery, pursuant to the principal theory, it is not a sufficient basis to warrant the imposition of the [10-20-life] mandatory minimum sentence”
Establishes the critical distinction that accomplice liability supports conviction but not the sentencing enhancement
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Join FLexlaw to unlock all legal intelligenceCesar and another man robbed a Subway store. The employee testified both men had guns, but the gun carried by Cesar appeared to be a toy gun. No actua…
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The defendant appeals his conviction and sentence for robbery with a firearm. The defendant was sentenced to ten years imprisonment, with a ten-year mandatory minimum, pursuant to section 775.087(2), Florida Statutes, (the “10-20-life statute”) for his possession of a firearm during the robbery. The defendant has argued that (1) he was prejudiced by admission of a bloody jacket at trial; (2) the State failed to provide a genuine race-neutral reason for striking a juror; and (3) the State failed to prove that he possessed a firearm during the robbery. We find no error in issues (1) and (2) and affirm the conviction. However, we reverse the 10-20-life sentencing enhancement due to the State’s failure to prove that the defendant actually possessed a firearm.
The defendant was one of two men who robbed a Subway store. The employee present during the robbery testified that both men had guns, but that the gun used by the defendant appeared to be a toy gun. No firearm was entered into evidence at trial, nor was there any evidence contradicting the employee’s testimony. Because the State presented evidence that the defendant’s accomplice had a gun, the evidence was sufficient to support the defendant’s robbery conviction under a principal theory. See Demps v. State, 649 So.2d 938, 939 (Fla. 5th DCA 1995) (finding evidence sufficient to support conviction for armed robbery, pursuant to principal theory, where evidence showed that codefendant carried firearm during commission of crime). However, while “possession of a firearm by a codefendant is sufficient to convict a defendant of armed robbery, pursuant to the principal theory, it is not a sufficient basis to warrant the imposition of the [10-20-life] mandatory minimum sentence.” Freeny v. State, 621 So.2d 505, 506 (Fla. 5th DCA 1993) (footnote omitted). Rather, the State must prove that a defendant had actual possession of the firearm. See Knight v. State, 70 So.3d 674, 675 (Fla. 1st DCA 2011). A toy gun does not fit within the definition of firearm under the 10-20-life statute. See, e.g., Coley v. State, 801 So.2d 205, 206-07 (Fla. 2d DCA 2001) (holding that a BB gun is not a firearm under the 10-20-life statute). Thus, the sentencing enhancement must be vacated.
Affirmed in part; vacated in part.
WARNER and TAYLOR, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Dotel v. State, 175 So. 3d 830 (Fla. 4th DCA 2015)…ally possess the firearm. See State v. Rodriguez, 602 So. 2d 1270, 1272 (Fla.1992). Section 812.13, however, already enhances the penalty to life imprisonment when a robbery is committed with a firearm. § 812.13(2)(a), Fla. Stat. In Cesar v. State, 94 So. 3d 703 (Fla. 4th DCA 2012), we reconciled the two statutes. “[W]hile ‘possession of a firearm by a co-defendant is sufficient to convict a defendant of armed robbery, pursuant to the principal theory, it is not a sufficient basis to warrant the imposition…
Authorities Cited
- Freeny v. State, 621 So. 2d 505 (Fla. 5th DCA 1993)
- Demps v. State, 649 So. 2d 938 (Fla. 5th DCA 1995)
- Coley v. State, 801 So. 2d 205 (Fla. 2d DCA 2001)
- Elbert Johnson v. State, 70 So. 3d 674 (Fla. 1st DCA 2011)
- Knight v. State, 70 So. 3d 674 (Fla. 1st DCA 2011)