SHERMAN BREWER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant's conviction for shooting into an occupied dwelling was affirmed, but the mandatory three-year minimum sentence imposed under § 775.087(2) was struck because shooting into a dwelling is not an enumerated offense under that statute.
A defendant convicted of shooting into an occupied dwelling cannot be sentenced under § 775.087(2) because that offense is not enumerated in the statute's list of crimes requiring a mandatory minimum sentence for firearm possession.
[1] A mandatory minimum sentence under § 775.087(2) may be imposed only for crimes enumerated in that statute, and shooting into an occupied dwelling is not an enumerated off…
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Join FLexlaw to unlock all legal intelligenceAppellant was convicted of shooting into an occupied dwelling and sentenced to seven years' imprisonment with a mandatory three-year minimum under § 7…
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PER CURIAM.
Appellant was adjudged guilty of shooting into an occupied dwelling and was sentenced to seven years’ imprisonment. In imposing the sentence the trial court invoked Section 775.087(2), Florida Statutes, thereby making appellant ineligible for parole until he had served a minimum term of imprisonment of three years. The sole point on appeal is whether the judge erred in imposing a mandatory three year minimum imprisonment under § 775.087.
The seven year sentence imposed by the trial court is not excessive in that the maximum sentence for this offense, under Section 790.19, Florida Statutes, is fifteen years. However the offense for which appellant was convicted is not one of the enumerated offenses under § 775.087(2) for which the possession of a “firearm” during the commission thereof, requires a mandatory minimum three years’ imprisonment before the defendant is eligible for parole. Since appellant was not convicted of one of the crimes set forth in § 775.087(2), he may not be sentenced under this statute. Accordingly appellant’s conviction is affirmed and the case is remanded with instructions that the trial court enter an appropriate order striking from appellant’s sentence the words “Mandatory Minimum 3 Yr. Sentence, F.S. 775.087(2).”
CROSS, ALDERMAN and LETTS, JJ., concur.
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Jones v. State, 356 So. 2d 4 (Fla. 4th DCA 1977)…ain enumerated crimes if the perpetrator had a firearm in his possession. We have previously held that if a defendant is not convicted of one of the crimes set forth in Section 775.087(2), he may not be sentenced under this statute. Brewer v. State, 343 So. 2d 628 (Fla. 4th DCA 1977). The statute lists “any murder” but does not include manslaughter. The State argues it was the intent of the Legislature that manslaughter be included; it contends that since manslaughter is a lesser included crime of murder, it…
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Samuels v. State, 681 So. 2d 915 (Fla. 4th DCA 1996)…it sentenced appellant to a three-year mandatory minimum sentence for shooting into an occupied dwelling. Section 775.087(2), Florida Statutes (1991) does not apply to a conviction for shooting [*916] into an occupied dwelling. See Brewer v. State, 343 So. 2d 628 (Fla. 4th DCA 1977). We remand this cause to the trial court with instructions to vacate the three-year mandatory minimum sentence for appellant’s shooting into an occupied dwelling. AFFIRMED IN PART; REVERSED IN PART and REMANDED. DELL, SHAHOOD…
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Rozier v. State, 353 So. 2d 193 (Fla. 3d DCA 1977)…ich defendant was convicted clearly is not one of the crimes specified in Section 775.087(2), Florida Statutes which provides for a mandatory three year sentence upon conviction of the offenses listed therein when a firearm is used. Brewer v. State, 343 So. 2d 628 (Fla. 4th DCA 1977); Biles v. State, 349 So. 2d 662 (Fla. 4th DCA 1977). Accordingly, the provision of the sentence requiring a minimum sentence of three years during which defendant would not be eligible for parole is hereby stricken. The judgment…
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