IRVINE HICKS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Irvine Hicks appeals his conviction and sentence for possession of a firearm by a convicted felon. The court affirmed the conviction but reversed the 10-year mandatory minimum sentence because the trier-of-fact did not make an express finding of actual possession, and remanded for resentencing by a successor judge.
The mandatory minimum sentence was properly reversed because the trier-of-fact did not make an express finding of actual possession. The conviction was affirmed. The case must be remanded for full resentencing rather than simple ministerial correction, and a successor judge should conduct a resentencing hearing because the original judge lacked jurisdiction, is no longer on the bench, and the Criminal Punishment Code scoresheet reflects a lowest permissible sentence well below ten years.
[1] A trial court lacks jurisdiction to modify a sentence after a notice of appeal has been filed.
[2] A mandatory minimum sentence may be reversed when the trier-of-fact does not make an express finding of actual possession of a firearm.
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Join FLexlaw to unlock all legal intelligence“the trier-of-fact did not make an express finding that appellant had actual possession of a firearm”
Establishes the basis for reversing the mandatory minimum sentence imposed under the 10/20/Life statute.
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Join FLexlaw to unlock all legal intelligenceHicks was convicted of possession of a firearm by a convicted felon and initially sentenced to a 10-year mandatory minimum under Florida's 10/20/Life …
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Irvine Hicks appeals his judgment of conviction and sentence for possession of a firearm by a convicted felon. We affirm appellant’s conviction on all issues raised in this appeal, but we reverse the 10-year mandatory minimum portion of the sentence imposed, because, as the state concedes, the trier-of-fact did not make an express finding that appellant had actual possession of a firearm. See Banks v. State, 949 So.2d 353, 355 (Fla. 4th DCA 2007).
Appellant was initially sentenced to a 10-year mandatory minimum sentence, pursuant to Florida’s 10/20/Life statute. He moved for a new trial or, alternatively, reconsideration of the mandatory minimum sentence, arguing that the state had failed to show actual possession. After the trial court denied appellant’s motion, appellant filed a notice of appeal. About two months later, during the pendency of the appeal, the trial court recalled the case and, upon the state’s concession that the mandatory minimum provision should be stricken, removed the mandatory minimum term from appellant’s sentence and resen-tenced appellant to ten years “straight time.” However, because appellant had already filed his notice of appeal, the trial court lacked jurisdiction to modify the sentence. See Tramel v. State, 68 So.3d 340, 340 (Fla. 1st DCA 2011). Thus, the court’s order removing the mandatory minimum term was without legal effect.
The next issue we must decide is whether resentencing is required. We recognize that remanding for a trial court to strike the mandatory minimum portion of a sentence is often a “ministerial sentence correction” for which resentencing is not required. See, e.g., Flores v. State, 58 So.3d 437, 438 (Fla. 4th DCA 2011). Nonetheless, a reversal of a mandatory minimum sentence will sometimes require the appellate court to remand for resentencing under the Criminal Punishment Code. See, e.g., *137 Bundrage v. State, 814 So.2d 1133, 1135 (Fla. 2d DCA 2002). Thus, the issue of whether resentencing is required following a reversal of a mandatory minimum term is a fact-specific inquiry that depends on the circumstances of each case.
Here, we decline to follow the state’s suggestion to direct the trial court on remand to simply strike the minimum mandatory portion of the sentence and leave the straight 10-year sentence intact. This, according to the state, would be consistent with the original sentencing judge’s intention. Notably, however, the original sentencing judge lacked jurisdiction at the time of the resentencing, this judge is no longer on the bench, and appellant’s Criminal Punishment Code scoresheet reflects a lowest permissible sentence well below ten years’ imprisonment. Under these circumstances, a successor judge should review the case and independently decide an appropriate sentence for appellant. We therefore reverse appellant’s sentence and remand for the trial court to strike the 10-year mandatory minimum term and conduct a full resentencing hearing with appellant present.
Affirmed in part, Reversed in part and Remanded.
Damoorgian and Kuntz, JJ,, concur.
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Cited By
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Carter v. State, 249 So. 3d 665 (Fla. 4th DCA 2018)
Authorities Cited
- Bundrage v. State, 814 So. 2d 1133 (Fla. 2d DCA 2002)
- The Sch. Bd. OF Broward Cnty. v. MR. Elec. & Assocs., Inc., 949 So. 2d 353 (Fla. 4th DCA 2007)
- Flores v. State, 58 So. 3d 437 (Fla. 4th DCA 2011)
- Tramel v. State, 68 So. 3d 340 (Fla. 1st DCA 2011)