Opinion
No. 94-2903.
September 27, 1995.
Appeal from the Circuit Court, Palm Beach County, Edward A. Garrison, J.
Richard L. Jorandby, Public Defender, and Cherry Grant, Assistant Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
We affirm the judgment of conviction adjudicating Appellant Lawrence Leonard guilty of armed robbery with a firearm and armed burglary with assault and battery. We affirm that part of appellant's sentence imposing concurrent nine-year terms of imprisonment, but reverse the imposition of a three-year mandatory minimum prison term for possession of a firearm during commission of the armed robbery. The absence of a jury finding that appellant had a firearm in his actual possession while participating with others in the armed robbery offense precludes imposition of the mandatory minimum penalty. State v. Overfelt, 457 So.2d 1385 (Fla. 1984); Rivas v. State, 591 So.2d 649 (Fla. 4th DCA 1991). We remand to the trial court with directions to delete such penalty from appellant's sentence. Hill v. State, 652 So.2d 904 (Fla. 4th DCA 1995).
AFFIRMED IN PART; REVERSED IN PART and REMANDED.
DELL, KLEIN and STEVENSON, JJ., concur.