STATE OF FLORIDA, APPELLANT,
v.
WILLIAM JOSEPH OPITZ, APPELLEE
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The State of Florida appealed a trial court's refusal to impose a mandatory three-year minimum sentence for robbery with a firearm under Florida Statute Section 775.087(2). The appellate court held that the statute is constitutional and that the trial judge lacked discretion to refuse its application, reversing the sentencing order.
The trial court erred in refusing to apply Section 775.087(2). The mandatory three-year minimum sentence is constitutional and must be imposed when a defendant is convicted of robbery while carrying a firearm. The sentencing order must be amended to reflect the mandatory minimum of three years.
[1] A mandatory minimum sentence established by the legislature, which is not cruel or unusual on its face, will be sustained against challenges based on due process, equal p…
[2] A trial court errs in refusing to impose a mandatory minimum sentence required by statute for a conviction of robbery with a firearm.
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Join FLexlaw to unlock all legal intelligence“I don't buy that statute. I don't think it's constitutional; never have.”
The trial judge's stated reason for refusing to apply the mandatory minimum sentence statute, demonstrating the trial court's rejection of Section 775.087(2)
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Join FLexlaw to unlock all legal intelligenceIn October 1976, defendant William Joseph Opitz was charged with robbery with a firearm. In 1977, he entered a guilty plea. The factual basis showed t…
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SCHEB, Judge.
In this appeal the state contends the trial court erred in refusing to impose upon defendant Opitz the mandatory three-year minimum sentence under Section 775.087(2), Florida Statutes (Supp.1976). We find the state’s contention has merit.
In October 1976 defendant was charged with committing robbery with a firearm. A year later he entered a plea of guilty as charged. The factual basis presented to the court showed that defendant had robbed the Spudnut Donut Shop in Ft. Myers, and that while doing so he had displayed a pistol. The state attorney requested that the sentencing order reflect that defendant was being sentenced pursuant to Section 775.087(2). The trial judge refused the request, opining, “I don’t buy that statute. I don’t think it’s constitutional; never have.” The trial judge subsequently sentenced defendant to a term of five years in the state prison. The sentencing order did not mention Section 775.-087(2), nor otherwise reflect that defendant would not be eligible for parole until he had served three years. This appeal by the state ensued.1
Any question as to the constitutionality of Section 775.087(2) was dispelled by the Supreme Court of Florida in Sowell v. State, 342 So. 2d 969 (Fla.1977), wherein the court stated:
[Wjhere a sentence is one that has been established by the legislature and is not on its face cruel and unusual, it will be sustained when attacked on grounds of due process, equal protection, or separation of power theories. We do not find the mandatory three-year sentence provision to be cruel or unusual. (Citations omitted.)
From our reading of the record in the instant case we can see no valid reason why the trial judge refused to apply the statute, which clearly requires a defendant convicted of robbery while carrying a firearm to serve a minimum of three years in prison.
Accordingly, this cause is remanded to the trial court with directions to amend the sentencing order to reflect that defendant must spend a minimum of three years in prison in accordance with Section 775.-087(2). Defendant need not be present at the revision of the sentence.
HOBSON, A. C. J., and GRIMES, J., concur. . In view of Sowell v. State, 342 So. 2d 969 (Fla.1977), the trial court’s ruling as to constitutionality is merely colorable and presents no substantial constitutional issue. Therefore, appellate jurisdiction is properly in this court rather than the supreme court. Art. V, § 3(b)(1), Fla. Const.; Simmons v. State, 354 So. 2d 1211, 1212 (Fla. 1978) (finding no substantial constitutional issue because the constitutionality of the statute there in question had previously been upheld in Riddle v. State, 345 So. 2d 1073 [Fla.1977]); Harrell's Candy Kitchen, Inc. v. Sarasota-Manatee Airport Authority, 111 So. 2d 439, 441-42 (Fla.1959). See also Massachusetts Bonding & Ins. Co. v. Bryant, 189 So. 2d 614 (Fla.1966) Daytona Beach Racing & Recreational Facilities District v. Volusia County, 355 So. 2d 175, 176 (Fla. 1st DCA 1978).
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State v. Carnell Sesler, 386 So. 2d 293 (Fla. 2d DCA 1980)…urt erred because Section 775.087(2) clearly requires a trial court to sentence a defendant convicted of aggravated assault with a firearm to a minimum of three years in prison. See D’Alessandro v. Shearer, 360 So. 2d 774 (Fla.1978); State v. Opitz, 357 So. 2d 469 (Fla.2d DCA 1978). While we recognize the problems inherent in the uniform imposition of a minimum sentence, this area is a matter of legislative prerogative and is nondiscretionary. Accordingly, we have no alternative but to remand to the trial c…
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Cnty. OF Seminole v. The Honorable Tom Waddell, Jr., 382 So. 2d 357 (Fla. 5th DCA 1980)…pholding the constitutionality of a $750.00 fee limit for capital cases in 1973 1, we view the respondents’ constitutional attack on Section 925.036 as merely colorable, rather than substantial, and therefore retain jurisdiction. See State v. Opitz, 357 So. 2d 469 (Fla. 2d DCA 1978); Simmons v. State, 354 So. 2d 1211 (Fla.1978). Moreover, the trial judge in this case did not directly pass on the validity of the statute or construe the state or federal constitution in regard to this issue. See Art. V, § 3(b)(1…
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Woodward v. State, 379 So. 2d 664 (Fla. 5th DCA 1980)…1979); State v. Cheatham, 376 So. 2d 1167 (Fla.1979) and Cilento v. State, 377 So. 2d 663 (Fla.1979), we find no substance in the constitutional argument. We thus suppress our initial desire to send this case up to our Supreme Court. State v. Opitz, 357 So. 2d 469 (Fla.2d DCA 1978); Simmons v. State, 354 So. 2d 1211 (Fla.1978). As to the following remaining points appellant raises alleging error, we find the evidence was sufficient to support the conviction, the alleged search and seizure question was not pr…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Harrell's Candy Kitchen, Inc. v. Sarasota-Manatee Airport Auth., 111 So. 2d 439 (Fla. 1959)
- Sowell v. State, 342 So. 2d 969 (Fla. 1977)
- Daytona Beach Racing & Recreational Facilities Dist. & Int'l Speedway Corp. v. Volusia Cnty., 355 So. 2d 175 (Fla. 1st DCA 1978)
- Mass. Bonding & Ins. Co. v. Farris Bryant, 189 So. 2d 614 (Fla. 1966)
- Riddle v. State, 345 So. 2d 1073 (Fla. 1977)
- State v. Dotson, 354 So. 2d 1211 (Fla. 1978)
- Simmons v. State, 354 So. 2d 1211 (Fla. 1978)