DAVID ARNETT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Florida District Court of Appeal reversed in part the denial of Arnett's motion to correct an illegal sentence, holding that a three-year mandatory minimum sentence for firearm possession by a convicted felon was improper because the charging document did not allege "actual possession" as required by statute, even though the jury found actual possession at trial.
The court held that the three-year mandatory minimum sentence was illegal because the charging defect cannot be cured by a jury finding of actual possession. The statute requires that grounds for sentence enhancement must be clearly charged in the information, and actual possession is an element required for the mandatory minimum to apply.
[1] A three-year mandatory minimum sentence for possession of a firearm by a convicted felon requires a specific finding of actual possession.
[2] To enhance a defendant's sentence under Florida Statutes section 775.087(2), the grounds for enhancement must be clearly charged in the information.
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Join FLexlaw to unlock all legal intelligence“To impose a three-year mandatory minimum sentence ... the factfinder must make a specific finding of actual possession.”
Establishes the statutory requirement that actual possession must be found as a prerequisite to the mandatory minimum sentence.
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Join FLexlaw to unlock all legal intelligenceArnett was convicted of possession of a firearm by a convicted felon. He was sentenced to a three-year mandatory minimum sentence under Florida Statut…
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The appellant appeals the denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a), raising three claims for relief. We affirm the denial as to grounds two and three without further discussion. However, for the reasons discussed below, we reverse and remand the denial as to ground one.
In ground one, the appellant asserts that a three-year minimum mandatory sentence imposed for his conviction for possession of a firearm by a convicted felon is illegal because he was never charged with being in “actual possession” of the firearm. Section 775.087(2)(a)l.r., Florida Statutes (2008), provides that an individual convicted of possession of a firearm by a convicted felon shall be subject to a three-year mandatory-minimum sentence; however, it is only applicable if the defendant is found to have been in actual possession of the firearm. See Banks v. State, 949 So.2d 353, 355 (Fla. 4th DCA 2007) (“To impose a three-year mandatory minimum sentence ... the factfinder must *88make a specific finding of actual possession.”).
In order to enhance a defendant’s sentence under section 775.087(2), the grounds for enhancement must be clearly charged in the information. See Young v. State, 86 So.3d 541 (Fla. 2d DCA 2012). In this case, although the appellant was charged with possessing a firearm, he was never charged with “actually” possessing the firearm.1 Cf. Green v. State, 18 So.3d 656 (Fla. 2d DCA 2009) (finding that trial court committed fundamental error by reclassifying defendant’s offense of trafficking in cocaine from a first-degree felony to a life felony pursuant to section 775.087(1) based on jury’s finding that defendant was in “actual possession” of a firearm at the time of the offense where criminal information did not allege that defendant was in actual possession of a firearm, but rather that he “carried, displayed, used, threatened to use or attempted to use” a firearm). The state asserts that there is no error because the jury in this case made a specific finding that the appellant actually possessed the firearm. However, a jury finding that the appellant actually possessed a firearm does not cure the charging defect. Cf. Davis v. State, 884 So.2d 1058 (Fla. 2d DCA 2004) (25-year minimum mandatory sentence illegal where death or great bodily harm not alleged in the information, even if a jury makes such a finding and the statute is quoted in the information).
Accordingly, we reverse and remand for the trial court to strike the three-year minimum mandatory sentence. We affirm the denial of the appellant’s remaining claims.
AFFIRMED in part, REVERSED and REMANDED IN PART with directions.
BENTON, VAN NORTWICK, and PADOVANO, JJ., concur.
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Citator
Cited By (12 total)
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Connolly v. State, 172 So. 3d 893 (Fla. 3d DCA 2015)…e before us, Connolly was not charged in Count 1 with carrying, [*935] displaying, using, etc., his service revolver during the commission of the murder, nor was that uncharged weapon at all related to the murder offense. See, e.g., Arnett v. State, 128 So. 3d 87 (Fla. 1st DCA 2013) (holding that 775.087 enhancement was improper where the grounds for enhancement were not clearly charged in the information, and a jury finding that the appellant actually possessed a firearm does not cure the charging defect).…
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Grant v. State, 138 So. 3d 1079 (Fla. 4th DCA 2014)…of actually possessing firearms during the commission of a robbery to a ten-year mandatory minimum sentence. The statute’s applicability is predicated on the defendant being “found to have been in actual possession of the firearm.” Arnett v. State, 128 So. 3d 87, 87 (Fla. 1st DCA 2013); Hough v. State, 448 So. 2d 628, 629 (Fla. 5th DCA 1984) (interpreting section 775.087(2) to mean that mandatory minimum sentencing may be imposed only if the defendant has actual, as against vicarious, possession of the fire…
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Martinez v. State, 169 So. 3d 170 (Fla. 4th DCA 2015)…dered the mandatory minimum sentence illegal. Id. at 1085. Here, the jury made an express finding of “actual possession.” Therefore, Grant is distinguishable. We acknowledge that the First District reached a different conclusion in Arnett v. State, 128 So. 3d 87 (Fla. 1st DCA 2013). There, the defendant was charged with possession of a firearm by a convicted felon. Id. at 88. The jury found him guilty of actually possessing a firearm, and the court imposed a mandatory minimum sentence. Id. The defendant fi…1 / 2
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Davis v. State, 884 So. 2d 1058 (Fla. 2d DCA 2004)
- The Sch. Bd. OF Broward Cnty. v. MR. Elec. & Assocs., Inc., 949 So. 2d 353 (Fla. 4th DCA 2007)
- Jamar Green v. State, 18 So. 3d 656 (Fla. 2d DCA 2009)
- Young v. State, 86 So. 3d 541 (Fla. 2d DCA 2012)