JOSEPH P. D'ALESSANDRO, ETC., PETITIONER,
v.
JOHN H. SHEARER, JR., ETC., RESPONDENT. IN RE JERRY CROOKS, CASE NO. 77-466CF. JOSEPH P. D'ALESSANDRO, ETC., PETITIONER, V. JOHN H. SHEARER, JR., ETC., RESPONDENT. IN RE WILLIAM OPITZ, CASE NO. 77-183CF
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The Florida Supreme Court issued a writ of mandamus compelling a circuit judge to impose mandatory minimum sentences under Florida Statutes Section 775.087(2) for robbery with a firearm. The judge had imposed five-year sentences but failed to explicitly recite the statutory three-year mandatory minimum, which the court held was legally insufficient.
A circuit judge must vacate sentences that fail to explicitly recite the mandatory minimum sentence required by Section 775.087(2) and reimpose sentences that clearly specify the three-year minimum imprisonment before the defendants are eligible for release.
[1] A court must impose a mandatory minimum sentence as required by statute, even if the judge believes the statute to be unconstitutional.
[2] A judge's refusal to impose a mandatory minimum sentence, despite awareness of a controlling appellate decision upholding the statute, constitutes a failure to perform a…
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Join FLexlaw to unlock all legal intelligence“shall be sentenced to a minimum term of imprisonment of three calendar years . . . adjudication of guilt or imposition of sentence shall not be suspended, deferred or withheld, nor shall the defendant be eligible for parole or statutory gain-time . . . prior to serving [the] minimum sentence.”
The statutory requirement for mandatory minimum sentences in robbery with firearm cases
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Join FLexlaw to unlock all legal intelligenceTwo defendants, Jerry Crooks and William Opitz, were charged with and pleaded guilty to robbery with a firearm. The circuit judge imposed five-year se…
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BOYD, Justice.
The State Attorney for the Twentieth Judicial Circuit petitioned this Court for an alternative writ of mandamus to compel the Honorable John Shearer, Lee County Circuit Judge, to perform his legal duty under Section 775.087(2), Florida Statutes. We issued the writ and have received the Judge’s response. We have concluded that a final writ should be issued.
The statute requires that any person convicted of certain enumerated criminal offenses, among them robbery, and who had a firearm in his possession at the time of the crime, “shall be sentenced to a minimum term of imprisonment of three calendar years . . . adjudication of guilt or imposition of sentence shall not be suspended, deferred or withheld, nor shall the defendant be eligible for parole or statutory gain-time . . . prior to serving [the] minimum sentence.” Section 775.087(2)(b), Florida Statutes. In two cases before Judge Shearer, State v. Crooks and State v. Opitz, the defendants, charged with robbery with a firearm, pleaded guilty as charged. The record shows that Judge Shearer refused to order the mandatory minimum sentences because he believed them to be unconstitutional, despite awareness of our decision upholding the statute against constitutional attack. See Sowell v. State, 342 So. 2d 969 (Fla.1977).
In the return and accompanying brief, Judge Shearer defends his inaction with the explanation that he believes he has performed his duty under the statute since he sentenced both defendants to five-year terms of imprisonment. The orders of judgment and sentence bear out that the five-year sentences were imposed. We give Judge Shearer the benefit of the doubt as to his intention. Still, the orders do not recite that the defendants are subject to the mandatory minimum sentence of three years imprisonment. Without such a recitation the authorities will not be on notice that the case calls for service in prison of a minimum of three years. And, even if they received notice by other means, without a judicial order it would be questionable whether minimum service was required. This cause is remanded to respondent with directions to vacate the prior sentences and impose sentences requiring three years of imprisonment on each defendant before possible eligibility for release, as provided in Section 775.087(2), Florida Statutes.
It is so ordered.
OVERTON, C. J., and ENGLAND, HATCHETT and ALDERMAN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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Allen v. State, 853 So. 2d 533 (Fla. 5th DCA 2003)…rrected it. First, we do not agree with the state’s argument that the modification had no effect on Allen’s sentence. When a statute mandates a minimum sentence, the sentencing court must specify it on the sentencing order. D’Alessandro v. Shearer, 360 So. 2d 774, 775 (Fla.1978) (issuing mandamus requiring trial court to recite that five-year sentences were subject to three-year minimum mandatory provisions because without such a recitation the authorities would not be on notice that the case calls for a min…
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State v. Carnell Sesler, 386 So. 2d 293 (Fla. 2d DCA 1980)…aced Sesler on five years probation. The court 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…
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State v. Muoio, 438 So. 2d 160 (Fla. 2d DCA 1983)…ion the case of State v. Gibson, 353 So. 2d 670 (Fla. 2d DCA 1978), wherein we held that the sentencing requirements of section 775.087(2), Florida Statutes (1975)3 [*163] were mandatory and could not be circumvented. Accord D’Alessandro v. Shearer, 360 So. 2d 774 (Fla.1978). See also Tascano v. State, 393 So. 2d 540 (Fla.1981) (holding that the word “shall” in the rule of criminal procedure concerning jury instructions makes it mandatory that the trial court give the instruction on maximum and minimum penalt…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Sowell v. State, 342 So. 2d 969 (Fla. 1977)