Opinion
No. 92-1166.
July 23, 1993.
Appeal from the Circuit Court, Orange County, James C. Hauser, J.
James B. Gibson, Public Defender, and Kenneth Witts, Asst. Public Defender, Daytona Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Bonnie Jean Parrish, Asst. Atty. Gen., Daytona Beach, for appellee.
Chaney was convicted of robbery with a firearm, and armed burglary of a conveyance, and was sentenced to ten year concurrent terms with a three year minimum mandatory sentence for the robbery count. We affirm in all regards except for the imposition of the minimum mandatory sentence, which we vacate. The jury found, as regards both crimes, that Chaney did not personally carry a firearm when they were committed. Accordingly, it was error to impose the three year minimum mandatory sentence pursuant to section 775.087(2). See Williams v. State, 18 Fla. L. Weekly S260, 1993 WL 122618 (Fla. April 22, 1993); State v. Rodriguez, 602 So.2d 1270 (Fla. 1992); State v. Overfelt, 457 So.2d 1385 (Fla. 1984); Rivas v. State, 591 So.2d 649 (Fla. 4th DCA 1991); Belcher v. State, 550 So.2d 1185 (Fla. 5th DCA 1989); State v. Jones, 536 So.2d 1161 (Fla. 5th DCA 1988); Hough v. State, 448 So.2d 628 (Fla. 5th DCA 1984).
§ 812.13(2)(a), Fla. Stat. (1991).
§ 810.02, Fla. Stat. (1991).
AFFIRM in part; VACATE Minimum Mandatory Sentence.
HARRIS, C.J., and W. SHARP and PETERSON, JJ., concur.