J.D. IRONS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the three-year minimum mandatory sentence enhancement under section 775.087(2)(a)(l)(r) was illegally imposed because it requires a finding of actual possession, which was not proven.
[1] A three-year minimum mandatory sentence enhancement for possession of a firearm by a convicted felon under section 775.087(2)(a)(1)(r), Florida Statutes, may only be impo…
[2] The imposition of a minimum mandatory sentence is error when the information does not specifically charge actual possession of a firearm and no proof of actual possession…
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Join FLexlaw to unlock all legal intelligenceJ.D. Irons was sentenced for possession of a firearm by a convicted felon, receiving a three-year minimum mandatory sentence enhancement. The informat…
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PER CURIAM.
J.D. Irons appeals the three-year minimum mandatory sentence imposed for possession of a firearm by a convicted felon. We reverse and remand for correction of the sentence.
For possession of a firearm by a convicted felon, section 790.23, Florida Statutes (1999), the trial court sentenced Irons to three years in state prison as a habitual felony offender under section 775.084, Florida Statutes (1999). The trial court also imposed a three-year minimum mandatory sentence enhancement pursuant to section 775.087(2)(a)(l)(r). Irons contends that the three-year minimum mandatory provision of the sentence was illegal because he was in constructive, not actual, possession of the firearm. The information filed by the State did not specifically charge Irons with being in actual possession of a firearm. Moreover, no proof was presented to the trial court that Irons was in actual possession of .a firearm. There fore, imposition of the three-year minimum mandatory sentence was error. See Bundrage v. State, 814 So. 2d 1133, 1134 (Fla. 2d DCA 2002) (holding that although the underlying offense of possession of a firearm by a convicted felon may be proved by either actual or constructive possession, the minimum mandatory sentence of section 775.087(2)(a)(l)(r) may be imposed only upon a finding of actual possession). With commendable candor, the State concedes error on this point.
The State also suggests that under the circumstances of this particular case, Irons should be granted the relief he requests, which is remand with instructions for the trial court to strike the three-year minimum mandatory sentence under section 775.087(2)(a)(l)(r), leaving the remainder of the sentence undisturbed. We agree. Irons does not need to be present for this correction of sentence. See Windisch v. State, 709 So. 2d 606, 607 (Fla. 2d DCA 1998).
Conviction affirmed; minimum mandatory sentence reversed, remanded to strike minimum mandatory sentence.
ALTENBERND, C.J., and FULMER and WALLACE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Washington v. State, 876 So. 2d 1242 (Fla. 2d DCA 2004)…ntence, reverse the minimum mandatory portion of the sentence, and remand for the trial court to strike the minimum mandatory designation. Mr. Washington need not be present when the trial court corrects the sentencing documents. See Irons v. State, 851 So. 2d 798 (Fla. 2d DCA 2003). WHATLEY and SALCINES, JJ., Concur.…
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Eliezer Barrientos v. State, 1 So. 3d 383 (Fla. 4th DCA 2009)…rty-year habitual offender prison sentence. See Fillmore v. State, 970 So. 2d 452 (Fla. 4th DCA 2007); Banks v. State, 949 So. 2d 353 (Fla. 4th DCA 2007). Barrientos need not be present when the trial court corrects the sentence. See Irons v. State, 851 So. 2d 798 (Fla. 2d DCA 2003). POLEN, STEVENSON and TAYLOR, JJ., concur.…
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Nickalist Mares Lang v. State, 941 So. 2d 528 (Fla. 1st DCA 2006)…andatory minimum sentence imposed pursuant to that statute, and remand with directions to strike that portion of the sentence. See Cook v. State, 816 So. 2d 267 (Fla. 1st DCA 2002). Appellant need not be present for resentencing. See Irons v. State, 851 So. 2d 798 (Fla. 2d DCA 2003). AFFIRMED IN PART; REVERSED IN PART; and REMANDED, with directions. BROWNING, C.J., DAVIS, and LEWIS, JJ., concur.…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bundrage v. State, 814 So. 2d 1133 (Fla. 2d DCA 2002)
- Windisch v. State, 709 So. 2d 606 (Fla. 2d DCA 1998)