Opinion
No. 98-0553.
Opinion filed June 23, 1999.
Appeal and cross-appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Edward A. Garrison, Judge; L.T. No. 97-4722 CF A02.
Sara Blumberg of Sara Blumberg, P.A., Boynton Beach, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellee.
We affirm defendant's conviction for robbery with a firearm but reverse the sentence for imposition of the mandatory minimum.
Section 775.087 provides that any person who has been convicted of robbery committed while using a firearm "shall be sentenced to a minimum term of imprisonment of 3 years." [e.s.] § 775.087(2)(c), Fla. Stat. (1997). The trial judge declined to impose this mandatory sentence because the defendant had an unidentified, unindicted accomplice in the robbery and therefore, he reasoned, the statute did not apply. We disagree.
The presence of accomplices during the commission of the crime is immaterial so long as the jury makes an express finding that the defendant convicted actually possessed a firearm during the event. Johnson v. State, 720 So.2d 232, 237 (Fla. 1998) (court may impose mandatory minimum sentence for use of a firearm where jury makes finding that defendant committed crime while using a firearm either by finding defendant guilty of crime involving firearm or by answering specific question of special verdict form so indicating); and State v. Overfelt, 457 So.2d 1385, 1387 (Fla. 1984) (same); cf. Redd v. State, 684 So.2d 881 (Fla. 4th DCA 1996) (mandatory minimum sentence for use of firearm during armed robbery improper where evidence at trial failed to establish conclusively that defendant actually possessed firearm).
Although there was more than one perpetrator of the crime in suit, the evidence presented at trial supports the contention that defendant possessed and used the firearm. The victim testified that defendant pointed the gun at her and demanded that she move into the back room. The videotape played at the trial reveals that the perpetrator had the gun pointed at the attendant during the robbery. The jury's verdict found defendant guilty of robbery with a firearm after the trial judge instructed the jury that they could find defendant guilty only if they determined that the defendant "carried a firearm in the course of committing the robbery."
CONVICTION AFFIRMED; SENTENCE REVERSED FOR IMPOSITION OF MANDATORY MINIMUM.
GUNTHER and TAYLOR, JJ., concur.