ARTAVIS DAWKINS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the imposition of a three-year mandatory minimum term for possession of a firearm was an illegal sentence because the factual basis did not establish actual possession.
Dawkins pleaded guilty to possession of a firearm by a convicted felon and was advised of a three-year mandatory minimum sentence. The factual basis d…
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DAVIS, Judge.
Artavis Dawkins challenges the trial court’s order denying his motion to correct sentencing error. We reverse and remand for further proceedings.
Dawkins entered a negotiated plea to the offense of possession of a firearm by a convicted felon and was advised by the trial court that he faced a three-year mandatory minimum term for possession of a firearm as a result. See § 775.087(2)(a)(l)(r), Fla. Stat. (2004). However, that mandatory term may not be imposed unless the defendant was in actual possession of the firearm at the time of the offense. See Washington v. State, 876 So. 2d 1242 (Fla. 2d DCA 2004); Bundrage v. State, 814 So. 2d 1133, 1134 (Fla. 2d DCA 2002).
Because neither the factual basis presented by the State nor the criminal report affidavit, upon which the State relied, established that Dawkins actually possessed the firearm at the time of the offense, the State correctly concedes that imposition of the three-year mandatory minimum term for possession of a firearm was in error. We conclude that Dawkins thus agreed to an illegal sentence pursuant to Carter v. State, 786 So. 2d 1173, 1181 (Fla.2001), which states that one of the three tests for determining the presence of an illegal sentence asks whether the terms or conditions of punishment for an offense are impermissible as a matter of law.
We therefore reverse and remand for resentencing. However, the State should also be allowed, if it chooses, to withdraw its assent to the plea agreement. See Langley v. State, 848 So. 2d 428, 429 (Fla. 2d DCA 2003).
Reversed and remanded.
FULMER, C.J., and STRINGER, J., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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State v. Mulus, 970 So. 2d 349 (Fla. 3d DCA 2007)…es only to cases of actual, not constructive, possession. See Banks v. State, 949 So. 2d 353 (Fla. 4th DCA 2007)(to impose a three-year minimum mandatory sentence, the fact finder must make a specific finding of actual possession); Dawkins v. State, 923 So. 2d 520 (Fla. 2d DCA 2005)(mandatory term may not be imposed unless the defendant was in actual possession of the firearm at the time of the offense); State v. Register, 846 So. 2d 1198 (Fla. 2d DCA 2003)(a felon convicted of possession of a firearm must be…
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Flores v. State, 58 So. 3d 437 (Fla. 4th DCA 2011)…ule of Criminal Procedure 3.800(a) motion to correct illegal sentence. The factual basis for the plea in this case did not establish actual possession of the firearm which is necessary for the three-year mandatory minimum to apply. Dawkins v. State, 923 So. 2d 520 (Fla. 2d DCA 2005); § 775.087(2)(a)l, Fla. Stat. (2001). The face of the record shows that appellant was in constructive, not actual, [*438] possession of the firearm. We reverse and remand for the trial court to strike the mandatory minimum term fr…
Authorities Cited
- Carter v. State, 786 So. 2d 1173 (Fla. 2001)
- Bundrage v. State, 814 So. 2d 1133 (Fla. 2d DCA 2002)
- Washington v. State, 876 So. 2d 1242 (Fla. 2d DCA 2004)
- Langley v. State, 848 So. 2d 428 (Fla. 2d DCA 2003)