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Hough v. State

District Court of Appeal of Florida, Fifth District
Apr 19, 1984
448 So. 2d 628 (Fla. Dist. Ct. App. 1984)

Summary

interpreting section 775.087 to mean that mandatory minimum sentencing may be imposed only if the defendant has actual, as against vicarious, possession of the firearm

Summary of this case from Grant v. State

Opinion

No. 83-690.

April 19, 1984.

Appeal from the Circuit Court, Putnam County, E.L. Eastmoore, J.

James B. Gibson, Public Defender, and Christopher S. Quarles, Asst. Public Defender, Daytona Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Mark C. Menser, Asst. Atty. Gen., Daytona Beach, for appellee.


The issue on appeal is whether the statutory three-year minimum penalty provided for in section 775.087(2)(b) Florida Statutes (1981), may be imposed on a defendant found guilty of an armed robbery participated in with others, in the absence of a finding by the jury that the defendant had the firearm in his actual possession.

There was sufficient evidence presented at trial to find appellant guilty of the crime charged because, despite a dispute in the evidence as to which of the three participants actually had possession of the single gun employed in the robbery, if any one of them carried the firearm during the commission of the crime, all of them are guilty as principals under section 777.011, Florida Statutes (1981). See § 812.13(2)(a), Fla. Stat. (1981).

This is not to say, however, that the three-year minimum mandatory sentence may be imposed merely on the basis of the finding of guilt, because the imposition of the mandatory minimum sentence requires that defendant have had actual, as distinguished from vicarious, possession of the firearm during the robbery. Earnest v. State, 351 So.2d 957 (Fla. 1977). This court has previously held that unless the crime charged is such as requires actual possession of a firearm to commit the crime or unless the allegations and proof lead to the inescapable conclusion that the defendant possessed a firearm during the commission of the crime, then the jury must specifically find that defendant possessed the firearm during the commission of the crime. Tindall v. State, 443 So.2d 362 (Fla. 5th DCA 1983). Although the information charges appellant with the commission of the robbery while carrying a firearm, the State's proof at trial was very much in dispute as to which of the three participants actually had possession of the gun at the time the robbery was committed. Because a finding of guilt of armed robbery in a fact situation such as the one before us does not necessarily require a finding that defendant actually possessed the gun, a special finding by the jury to that effect was required before the minimum mandatory sentence could be imposed.

Because the jury was not requested to make such finding and because the sentencing error was fundamental ( Reynolds v. State, 429 So.2d 1331 (Fla. 5th DCA 1983)) even in the absence of objection below, we are compelled to set aside the three year minimum mandatory sentence. In all other respects, the judgment and sentence are affirmed.

AFFIRMED in part and REVERSED in part.

SHARP and COWART, JJ., concur.


Summaries of

Hough v. State

District Court of Appeal of Florida, Fifth District
Apr 19, 1984
448 So. 2d 628 (Fla. Dist. Ct. App. 1984)

interpreting section 775.087 to mean that mandatory minimum sentencing may be imposed only if the defendant has actual, as against vicarious, possession of the firearm

Summary of this case from Grant v. State

In Hough, this court held that unless the crime charged requires a finding by the jury that the defendant had actual possession of a firearm, or unless the allegations support such a finding and the evidence at trial leads to the inescapable conclusion that the defendant actually possessed a firearm during commission of the crime, then the jury must make a special explicit finding in the verdict form that the defendant actually possessed the weapon.

Summary of this case from Freeny v. State

In Hough, the defendant was found guilty of armed robbery and the evidence was very much in dispute as to which of the three participants actually possessed the firearm during the course of the robbery.

Summary of this case from State v. Jones
Case details for

Hough v. State

Case Details

Full title:TONDRICK HOUGH, APPELLANT, v. STATE OF FLORIDA, APPELLEE

Court:District Court of Appeal of Florida, Fifth District

Date published: Apr 19, 1984

Citations

448 So. 2d 628 (Fla. Dist. Ct. App. 1984)

Citing Cases

State v. Jones

We agree that when an information charges that the defendant committed the crime while armed with a firearm,…

Freeny v. State

In order for a defendant's sentence to be enhanced pursuant to section 775.087, the state must prove that the…