State v. Lopez

Full title: THE STATE OF FLORIDA, APPELLANT, v. JULIAN LOPEZ, APPELLEE

Court: District Court of Appeal of Florida, Third District

Date published: Jan 12, 1982

408 So. 2d 744 (Fla. Dist. Ct. App. 1982)

Opinion

No. 81-266.

January 12, 1982.

Appeal from the Circuit Court, Dade County, Moie J.L. Tendrich, J.

Jim Smith, Atty. Gen. and Calianne P. Lantz, Asst. Atty. Gen., for appellant.

Richard Menin, Miami Beach, for appellee.

Before SCHWARTZ, BASKIN and DANIEL S. PEARSON, JJ.

PER CURIAM.

Lopez pled guilty to an information which charged him with carrying a firearm in the course of a robbery. Nonetheless, the trial court's five-year sentence did not include a provision that he serve a minimum mandatory three-year term without eligibility for parole or gain time, as is required under these circumstances by Section 775.087(2), Florida Statutes (1979). We agree with the state's position¹ that there is nothing to justify this omission. D'Alessandro v. Shearer, 360 So.2d 774 (Fla. 1978). Hence, the sentence is reversed in part and the cause remanded with directions to make the sentence imposed as to Count I of the information subject to the three-year mandatory requirement.²

1 We have jurisdiction to consider its appeal as one from an illegal sentence under Fla.R.App.P. 9.140(c)(1)(1) and Sec. 924.07(5), Fla. Stat. (1979).

2 The defendant need not be present for this amendment.

Reversed and remanded.