EARL MCGOWAN, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Earl McGowan appeals his conviction for robbery and unlawful possession of a firearm while engaged in a criminal offense. The appellate court affirms his probation conditions but remands for reconsideration of a mandatory three-year minimum incarceration requirement, finding the evidence showed his accomplice, not McGowan, possessed the firearm.
While trial courts have general authority to impose incarceration as a condition of probation for felony offenses, a mandatory minimum incarceration requirement under Section 775.087 requires actual, not constructive, possession of a firearm. Since McGowan did not have actual possession of the firearm, the three-year mandatory minimum incarceration condition was improper and must be reconsidered.
[1] A trial court has the general authority to require incarceration as a condition of probation for felony offenses.
[2] Incarceration imposed as a condition of probation constitutes a condition of probation, not a sentence.
Previewing 2 of 4 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“To come within the purview of this statute a defendant must have actual, not constructive possession of a firearm.”
Establishes the key requirement for Section 775.087's mandatory minimum incarceration provision.
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Join FLexlaw to unlock all legal intelligenceMcGowan was convicted of robbery and unlawful possession of a firearm during a criminal offense. The trial judge withheld sentence and imposed ten yea…
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PER CURIAM.
Defendant, Earl McGowan, appeals his conviction and “sentence” for robbery and unlawful possession of a firearm while engaged in a criminal offense.
We find defendant’s first contention concerning the trial court’s failure to instruct on the element of specific intent to be without merit. See Bell v. State, 354 So. 2d 1266 (Fla.3d DCA 1978).
McGowan secondly argues that the trial court erred in ordering, pursuant to Section 775.087, Florida Statutes (1975), that he serve a minimum of three years imprisonment prior to being eligible for parole where the evidence adduced at trial established that he was not in actual possession of a firearm during the commission of the robbery with which he was charged.
The trial judge in the instant case withheld imposition of sentence and placed McGowan on ten years probation. As a special condition of probation the judge ordered that McGowan be imprisoned for seven years and further that he not be eligible for parole until he served three years pursuant to Section 775.087, Florida Statutes (1975). The judge also directed that McGowan be eligible for gain time under Sections 944.27, 29, Florida Statutes (1975).
Trial courts of this state have the general authority to require incarceration as a condition of probation for felony offenses pursuant to the general condition provisions of Section 948.03, Florida Statutes (1975). State v. Jones, 327 So. 2d 18 (Fla.1976). When incarceration is imposed as a condition of probation, such incarceration constitutes a condition of probation and not a sentence. See State v. Williams, 237 So. 2d 69 (Fla.2d DCA 1970
); See also Fla. R.Crim.P. 3.790(a).
Nevertheless, it appears that the trial judge imposed the condition that McGowan serve three of the seven years incarceration only because of the dictates of Section 775.087, Florida Statutes (1975). To come within the purview of this statute a defendant must have actual, not constructive possession of a firearm. Earnest v. State, 351 So. 2d 957 (Fla.1977). The evidence in the record reflects that McGowan’s accomplice and not McGowan was in actual possession of the firearm. Although we affirm the conditions of probation, we remand the cause to the trial court to review the imposition of the three year mandatory incarceration condition in light of the holding in Earnest, supra.
It is so ordered.
. Cited with approval in State v. Jones, supra.
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Villery v. The Fla. Parole & Prob. Comm'n, 396 So. 2d 1107 (Fla. 1980)…able law. Petitioner takes the position that incarceration as a condition of probation is a “sentence” for purposes of eligibility for parole consideration under section 947.16(1). Petitioner acknowledges the general statement in McGowan v. ’State, 362 So. 2d 335 (Fla. 3d DCA 1978), that incarceration imposed as a condition of probation does not constitute a sentence. However, petitioner refers us to Shead v. State, 367 So. 2d 264 (Fla.3d DCA 1979), where the same court expressed its doubts on whether a leng…1 / 2
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Eve Postell v. State, 383 So. 2d 1159 (Fla. 3d DCA 1980)…of proof that the defendant personally, not vicariously 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…
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Chauncey Patrick Olcott v. State, 378 So. 2d 303 (Fla. 2d DCA 1979)…he has served twelve months in prison and maintained a good record. However, two courts in this state have held that when a court imposes incarceration as a condition of probation, the incarceration does not constitute a sentence. McGowan v. State, 362 So. 2d 335 (Fla. 3d DCA 1978); State v. Williams, 237 So. 2d 69 (Fla. 2d DCA 1970). In an amicus curiae brief which we requested in this case, the Florida Parole and Probation Commission states that in view of these authorities the Commission has established…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Jones, 327 So. 2d 18 (Fla. 1976)
- Earnest v. State, 351 So. 2d 957 (Fla. 1977)
- State v. Wardell Robert Williams, 237 So. 2d 69 (Fla. 2d DCA 1970)
- Bell v. State, 354 So. 2d 1266 (Fla. 3d DCA 1978)