Allen v. State
| Decision Date | 28 September 2001 |
| Docket Number | No. 5D01-649.,5D01-649. |
| Citation | 799 So.2d 284 |
| Parties | Bernard ALLEN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Lisa T. Munyon and Paula C. Coffman, Orlando, for Appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Denise O. Simpson, Assistant Attorney General, Daytona Beach, for Appellee.
Allen carjacked a vehicle from a victim and his girlfriend in the parking lot of a restaurant and in doing so threatened to shoot if they resisted. During pursuit, Allen made a sharp u-turn and flipped the Lincoln Navigator. A firearm was found on the ground by the vehicle. After Miranda warnings, Allen admitted to an officer that he had pointed the gun at the victims.
Allen was convicted of carjacking with a firearm. At sentencing, the court announced a sentence of 20 years in prison but, after defendant was removed from the courtroom, advised defense counsel that he also intended to impose the minimum mandatory sentence for the use of a firearm. Noting that the defendant was not present in the courtroom, the judge asked defense counsel if she wanted the defendant brought back into court to hear the minimum mandatory provision announced. Defense counsel stated that she had no problem with the court proceeding in the absence of defendant.
Appellant claims on appeal that the State never proved that he had possession of the firearm during the commission of the carjacking because neither the victim nor his girlfriend actually saw the weapon. We believe that his threat to shoot the victim, the finding of a firearm at his arrest scene, and appellant's admission that he pointed the firearm at the victim and his girlfriend is sufficient proof that he physically possessed the firearm during the carjacking.
Appellant also contends that since there was no specific jury finding that appellant actually possessed a firearm during the carjacking, the minimum mandatory sentence can not stand. We disagree. Here, there was only one perpetrator involved in the carjacking. Use of the firearm was made an element of the offense. By finding appellant guilty as charged, the jury necessarily found that a firearm was used and that appellant used it. We acknowledge authority that if there are multiple perpetrators, the jury must determine which of them used a firearm. Such cases are irrelevant in this case.
Finally, Appellant argues that since the court did not announce the minimum mandatory sentence while he was present in the courtroom, it is now too late to impose it. This is not a situation in which the sentence was not...
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Walton v. State, 1D10–6776.
...consent did not serve, under the facts here, to waive Appellant's right to be present at resentencing. Cf. Allen v. State, 799 So.2d 284, 285–86 (Fla. 5th DCA 2001). And the resentencing in this case was not purely ministerial. See Christian, 5 So.3d at 787. Upon concluding, based on Appell......
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Allen v. State
...erroneous because Allen had been removed from the courtroom by the time the trial court announced the minimum term. In Allen v. State, 799 So.2d 284 (Fla. 5th DCA 2001), we affirmed the conviction and sentence. The state did not cross appeal. Id. After remand, Allen moved for modification o......
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Johnson v. State Of Fla.
...findings is that the jury found Johnson was in actual possession of the firearm and he actually discharged same. See Allen v. State, 799 So. 2d 284, 285 (Fla. 5th DCA 2001) ("Appellant also contends that since there was no specific jury finding that appellant actually possessed a firearm du......
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Johnson v. State
...findings is that the jury found Johnson was in actual possession of the firearm and he actually discharged same. See Allen v. State, 799 So.2d 284, 285 (Fla. 5th DCA 2001) (“Appellant also contends that since there was no specific jury finding that appellant actually possessed a firearm dur......