ALVIN DAVID BROWN, A/K/A CALVIN CARTER, ANTHONY JEROME COLLINS, HERBERT MARLIN JOHNSON, AND SAM WILLIAMS A/K/A PAUL ADAMS, APPELLANTS,
v.
STATE OF FLORIDA, APPELLEE
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Four defendants convicted of robbery with a firearm were sentenced to mandatory three-year terms without a presentence investigation. The court reversed on two grounds: that only the defendant with actual possession of a firearm could receive the mandatory minimum, and that the statute does not preclude presentence investigations.
The mandatory three-year minimum sentence under § 775.087(2) applies only to defendants with actual possession of a firearm, not to aiders and abettors. Additionally, the statutory language does not preclude a presentence investigation before imposing sentence.
[1] A defendant cannot be sentenced to a mandatory minimum term for possession of a firearm during a felony unless the defendant was in actual possession of the firearm.
[2] The statute permitting an aider or abettor to be punished as a principal does not allow for vicarious possession to trigger mandatory minimum sentencing provisions for fi…
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Join FLexlaw to unlock all legal intelligence“The State could only identify the appellant, Williams, as being the actual possessor of one of two guns involved in this robbery. Nonetheless, all three of the remaining defendants were, like Williams, sentenced to the mandatory 3 years, minimum jail sentence, under § 775.-087(2) Fla.Stat. (1975). It was error to do so under this statute.”
Establishes that actual possession is required for the mandatory minimum sentence, not aiding and abetting.
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Join FLexlaw to unlock all legal intelligenceFour co-defendants were convicted of robbery with a firearm. Only defendant Williams was identified as the actual possessor of one of two guns involve…
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LETTS, Judge.
This case involves a conviction obtained against 4 co-defendants for robbery with a firearm. All 4 defendants were sentenced to a mandatory 3 year term under Fla.Stat. § 775.087(2) (1975) without the benefit of a presentence investigation. We reverse, finding merit in two of the four points on appeal.
The facts reveal that the State could only identify the appellant, Williams,- as being the actual possessor of one of two guns involved in this robbery. Nonetheless, all three of the remaining defendants were, like Williams, sentenced to the mandatory 3 years, minimum jail sentence, under § 775.-087(2) Fla.Stat. (1975). It was error to do so under this statute.
The State argues that the jury instruction, and sentence, was proper under § 777.-011 Fla.Stat. (1975), which permits any aider or abettor to be treated as, and punished as, a principal in the first degree. We might well have agreed with this contention on the date of the convictions, however, the argument has since been rejected by our Supreme Court which recently held that vicarious possession will not suffice and that actual possession must be the test to invoke the provisions of § 775.087(2). Earnest v. State, 351 So. 2d 957 (Fla.1977). We agree that it is somewhat doubtful if the foregoing is procedurally preserved for our review; however, in the light of our decision on the ensuing point, we remand with directions to the trial court to proceed in accordance with the foregoing as to all defendants, except Williams.
Turning now to the trial judge’s ruling that a presentence investigation is not permissible under the same § 775.087(2) because of the following wording:
“Notwithstanding the provisions of § 948.01, adjudication of guilt or IMPOSITION OF SENTENCE shall not be suspended, DEFERRED . prior to serving such minimum sentence.” (emphasis supplied.)
We find this to be in error also. Once again the question has since been resolved opposite to the trial judge’s ruling in this case. Thus in our very recent holding in Thomas v. State, Fla.App., 356 So. 2d 846, opinion filed March 14, 1978, we held that the particular wording of the statute does not preclude a presentence investigation,
THIS CAUSE IS REVERSED AND REMANDED FOR PROCEEDINGS IN ACCORDANCE HEREWITH.
ANSTEAD, J., and MINER, Jr., Associate J., concur.
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Whitehead v. State, 446 So. 2d 194 (Fla. 4th DCA 1984)…egal problem presented by the record on this issue. It is established that vicarious possession of a firearm is insufficient to impose the mandatory three year minimum jail sentence under Section 775.087(2), Florida Statutes (1981). Brown v. State, 358 So. 2d 92 (Fla. 4th DCA), cert. denied, 364 So. 2d 881 (Fla.1978); Earnest v. State, 351 So. 2d 957 (Fla.1977). A finding of actual possession may be based upon circumstantial evidence. Bradley v. State, 413 So. 2d 1248 (Fla. 1st DCA 1982). Neither the victim…1 / 2
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Willingham v. State, 541 So. 2d 1240 (Fla. 2d DCA 1989)…sing the three-year mandatory minimum provision under section 775.087(2)2; possession under that subsection must be direct. Jenkins v. State, 448 So. 2d 1060 (Fla. 4th DCA 1984), reversed on other grounds, 466 So. 2d 1068 (Fla.1985); Brown v. State, 358 So. 2d 92 (Fla. 4th DCA), cert. denied, 364 So. 2d 881 (Fla.1978). A plain reading of section 775.087(1) would be to require proof that Willingham actually carried or used a firearm during the course of the offense. Any other interpretation is not expressed…
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Brown v. State, 397 So. 2d 320 (Fla. 2d DCA 1981)…mprisonment. There was no evidence adduced that Rieder possessed a firearm in either of the robberies. The fact that appellant Brown possessed a firearm will not support a minimum three-year sentence under section 775.087 for Rieder. Brown v. State, 358 So. 2d 92 (Fla. 4th DCA 1978). Accordingly, each appellant’s conviction and sentence for the robbery of the Breeze-In-Market is reversed and those cases are remanded for a new trial. Rieder’s conviction for the robbery of the bookstore is affirmed, however,…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Earnest v. State, 351 So. 2d 957 (Fla. 1977)
- Thomas v. State, 356 So. 2d 846 (Fla. 4th DCA 1978)