Opinion
No. 88-1261.
February 21, 1989.
An Appeal from the Circuit Court of Dade County; Alphonso C. Sepe, Judge.
Robert A. Butterworth, Atty. Gen., and Fariba Komeily, Asst. Atty. Gen., for appellant.
Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Asst. Public Defender, for appellee.
Before HUBBART and NESBITT and BASKIN, JJ.
Based on the authority of State v. Sesler, 386 So.2d 293 (Fla. 2d DCA 1980), as well as the defendant's confession of error, the sentence imposed in this case is reversed and the cause is remanded to the trial court with directions to give the defendant the option to (a) withdraw his nolo plea entered below and proceed to trial, or (b) be sentenced to a mandatory minimum sentence of three-years imprisonment under Section 775.087(2), Florida Statutes (1987), unless a showing is made upon remand that the defendant's possession of the firearm herein was vicarious, rather than direct, see, e.g., Lester v. State, 458 So.2d 1194 (Fla. 1st DCA 1984); Boozer v. State, 402 So.2d 585 (Fla. 5th DCA 1981), in which event the defendant may be sentenced to less than three-years imprisonment or be placed on probation.
REVERSED AND REMANDED.