DONALD ARTHUR, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Donald Arthur pleaded nolo contendere to robbery while carrying a firearm, a life felony requiring a minimum three-year prison sentence. The court reversed the mandatory minimum imprisonment requirement because Arthur did not personally possess the firearm, even though he participated in the robbery with his brother who carried the weapon.
A defendant is subject to the mandatory three-year minimum imprisonment requirement only if the defendant personally and not vicariously possessed the firearm. The requirement must be pleaded and proved that the defendant personally possessed the firearm.
[1] A defendant is not subject to a mandatory minimum sentence for possessing a firearm during the commission of a felony if the firearm was possessed by a co-perpetrator and…
[2] A nolo contendere plea does not waive the right to appeal a mandatory minimum sentence based on the defendant's personal possession of a firearm.
Previewing 2 of 3 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“In order for the defendant to be required to serve the minimum of three years it is necessary that it be pleaded and proved that the defendant personally, and not vicariously, possessed the firearm.”
Establishes the controlling legal standard that personal possession of the firearm is required for the mandatory minimum sentence enhancement, not vicarious liability.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceArthur and his brother entered a 7-11 store with intent to rob it. The brother possessed and displayed a rifle while robbing two people inside the sto…
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DAUKSCH, Judge.
In this case the Appellant pleaded nolo contendere to the charge of robbery while carrying a firearm as proscribed in Section 812.13(2), Florida Statutes (1975). This is a life felony and under the provisions of Section 775.087, Florida Statutes (1975), one convicted of this crime is required to serve at least three years in prison.
The question on appeal is whether the Appellant is subject to the minimum three year imprisonment since he did not possess the firearm but it was possessed by his co-perpetrator. Interestingly, the Defendant’s attorney has filed an Anders1 brief saying there “is no point of reversible error presented.” We cannot find the appeal to be “wholly frivolous” as that standard is required in An-ders, supra, and suggest counsel for the Appellant reconsider the guidelines set out in Anders, supra.
In taking the plea of nolo contendere two slightly different factual bases for the plea were given by counsel:
Counsel for the State: “. . . this Defendant, along with his brother, went to the 7-11 on South Federal Highway and at that point, the brother, Mitchell Arthur, got a rifle and robbed two of the people who were inside the 7-11 and both Defendants were apprehended as they were making their get-away with the fruits of the crime in their possession.
“This Defendant did not have in his possession at that time, the handgun, but was a participant of the taking of the fruits of that robbery which are described in the information.”
Counsel for the Defendant: “. this Defendant walked in a store and about three minutes later, his brother came in with a rifle and began robbing the store.
“This Defendant then participated in this robbery.
“I think we can stipulate and agree before this Court that this Defendant, at that time, Donald Claude Arthur, did not have any weapon in his possession.”
Counsel for the State: “As far as the factual presentation about what was said about the facts, is that what you did?
“THE DEFENDANT: Right.”
Under the State’s version it appears the Appellant might only be guilty of receiving stolen property, Section 812.031, Florida Statutes (1975), since there was no showing this Appellant knew of any robbery or otherwise participated except in “making the get-away with the fruits.” This is also a possible aceessory-after-the-fact situation. Section 777.03, Florida Statutes (1975).
However, because the Appellant admitted participation in the robbery by his answer, “Right,” to the State’s attorney’s question and because his plea of nolo con-tendere presents no defense to the crime charged, robbery with a-firearm, we easily affirm the Judgment of guilt.
When Appellant entered his plea he specifically reserved the right to appeal the minimum three year imprisonment saying he did not possess the firearm personally therefore he is not liable under Section 775.-087, Florida Statutes (1975). In Earnest v. State, 349 So. 2d 1190 (Fla.S.Ct.1977), and Johnson v. State, 349 So. 2d 1190 (Fla.S.Ct.1977), the Supreme Court of Florida has answered the question. In order for the defendant to be required to serve the minimum of three years it is necessary that it be pleaded and proved that the defendant personally, and not vicariously, possessed the firearm.
Therefore that portion of the sentence which requires the Appellant to serve a minimum of three years is REVERSED.
ANSTEAD, J., concurs.
CROSS, J., concurs only in conclusion.
. Anders v. State of California, 386 U.S 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).
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Sireci v. State, 399 So. 2d 964 (Fla. 1981)…ction 775.082 and 921.141, Florida Statutes (1977). The indictment charged all the elements of murder in the first degree and the defendant had notice of the aggravating circumstances. In support of his position defendant has cited Arthur v. State, 351 So. 2d 60 (Fla. 4th DCA 1977), which seems to indicate that, before the trial court can impose a mandatory minimum three-year sentence pursuant to section 775.087(2), Florida Statutes (1977), the allegation that defendant carried a fireman must be contained i…
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Eve Postell v. State, 383 So. 2d 1159 (Fla. 3d DCA 1980)…sly or constructively, possessed the weapon during the commission of the crime involved. Earnest v. State, 351 So. 2d 957 (Fla.1977); Johnson v. State, 349 So. 2d 1190 (Fla.1977); McGowan v. State, 362 So. 2d 335 (Fla. 3d DCA 1978); Arthur v. State, 351 So. 2d 60 (Fla. 4th DCA 1977). We are of the view that the enhancement provisions of Section 775.087(1), Florida Statutes (1977), a fortiori require that the defendant personally possess the weapon during the commission of the crime involved.7 However, a cor…
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Zarro v. State, 390 So. 2d 811 (Fla. 5th DCA 1980)…of a firearm during the commission of certain enumerated crimes including robbery. For section 775.087 to apply, the defendant must have a firearm in his actual, not vicarious possession. Earnest v. State, 351 So. 2d 957 (Fla.1977); Arthur v. State, 351 So. 2d 60 (Fla. 4th DCA 1977). Zarro’s accomplice was carrying a [*812] firearm, but Zarro was not. Because the firearm was not in Zarro’s possession section 775.087 is not applicable. This cause is remanded to the trial court for resentencing in accordance w…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- Johnson v. State, 349 So. 2d 1190 (Fla. 1977)