Swain v. State

4 Citing cases

  1. Mulligan v. Sec'y

    Case No. 3:16-cv-1006-J-34JBT (M.D. Fla. Feb. 13, 2019)   Cited 1 times

    23(1), Fla. Stat. Possession can be either actual or constructive. Swain v. State, 226 So. 3d 1002, 1003 (Fla. 1st DCA 2017). Notably, "[i]n a car that is jointly occupied, knowledge and the ability to control the firearm may not be inferred but must be established by independent proof," which "can consist of incriminating statements or circumstances which tend to support the inference."

  2. Rock v. State

    392 So. 3d 791 (Fla. Dist. Ct. App. 2024)

    Consistent with this definition, our courts have required a jury finding of actual possession to impose the three-year mandatory minimum for possession of a firearm by a convicted felon. See Christian v. State, 313 So. 3d 725, 728 (Fla. 2d DCA 2020) ("While a finding of either actual or construction possession will support a conviction for possession of a firearm by a felon, case law is clear that a finding of actual possession is necessary to support imposition of the three-year mandatory minimum enhancement under section 775.087(2)(a)1."); Swain v. State, 226 So. 3d 1002, 1004 (Fla. 1st DCA 2017) (observing that for the offense of possession of a firearm by a convicted felon, "actual possession is required in order to sentence a defendant to a mandatory minimum sentence under ... section 775.087(2)(a)1."); Banks v. State, 949 So. 2d 353, 355 (Fla. 4th DCA 2007) (observing that the offense of possession of a firearm by a convicted felon is proven by either actual or constructive possession, but that a factfinder must make a specific finding of actual possession for the court to impose the mandatory minimum sentence under section 775.087(2)(a)1,)

  3. Christian v. State

    313 So. 3d 725 (Fla. Dist. Ct. App. 2020)   Cited 2 times

    While a finding of either actual or constructive possession will support a conviction for possession of a firearm by a felon, case law is clear that a finding of actual possession is necessary to support imposition of the three-year mandatory minimum enhancement under section 775.087(2)(a)(1). Swain v. State, 226 So. 3d 1002, 1003-04 (Fla. 1st DCA 2017) (first citing Miller v. State, 838 So. 2d 644, 644 (Fla. 1st DCA 2003) ; then citing Johnson v. State, 855 So. 2d 218, 222 (Fla. 5th DCA 2003) ; and then citing Bundrage v. State, 814 So. 2d 1133, 1135 (Fla. 2d DCA 2002) ). It is equally clear that the actual possession finding for purposes of sentencing must be made by the jury: "[F]acts that increase mandatory minimum sentences must be submitted to the jury ...."

  4. Birch v. State

    248 So. 3d 1213 (Fla. Dist. Ct. App. 2018)   Cited 9 times
    Holding "a jury's 10–20–Life finding has no legal bearing on the findings or evidence required to convict of an underlying crime"

    The felon in possession statute prohibits convicted felons, among others, from owning or having in their "care, custody, possession, or control any firearm, ammunition," and other weapons or devices. § 790.23(1), Fla. Stat. Thus, "[a] finding of either actual or constructive possession will support a conviction" for felon in possession. Swain v. State , 226 So.3d 1002, 1003 (Fla. 1st DCA 2017) ; see alsoState v. Mulus , 970 So.2d 349, 350 (Fla. 3d DCA 2007) (noting courts interpret section 790.23 as meaning possession can be actual or constructive). A jury can infer constructive possession when the evidence shows a gun was in plain view or the defendant otherwise knew of its presence and had the ability to control it. Barlatier v. State , 26 So.3d 29, 32 (Fla. 3d DCA 2009) (holding presence of gun under driver's seat where defendant was sitting established constructive possession); Hunter v. State, 914 So.2d 985, 986 (Fla. 4th DCA 2005) (holding evidence sufficiently supported constructive possession of a firearm in plain view next to defendant's position in the driver's seat; he knew of its presence and had the ability to control it); see alsoUbiles v. State , 23 So.3d 1288, 1291 (Fla. 4th DCA 2010) (holding the state proved constructive possession of marijuana in defendant's vehicle where passenger was smoking it while defendant was driving, and burnt marijuana cigarettes