Arnett v. State
Decision Date | 19 December 2013 |
Docket Number | No. 1D13–1636.,1D13–1636. |
Citation | 128 So.3d 87 |
Parties | David ARNETT, Appellant, v. STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
OPINION TEXT STARTS HERE
David Arnett, pro se, Appellant.
Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
The appellant appeals the denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a), raising three claims for relief. We affirm the denial as to grounds two and three without further discussion. However, for the reasons discussed below, we reverse and remand the denial as to ground one.
In ground one, the appellant asserts that a three-year minimum mandatory sentence imposed for his conviction for possession of a firearm by a convicted felon is illegal because he was never charged with being in “actual possession” of the firearm. Section 775.087(2)(a) 1.r., Florida Statutes (2008), provides that an individual convicted of possession of a firearm by a convicted felon shall be subject to a three-year mandatory-minimum sentence; however, it is only applicable if the defendant is found to have been in actual possession of the firearm. See Banks v. State, 949 So.2d 353, 355 (Fla. 4th DCA 2007) ().
In order to enhance a defendant's sentence under section 775.087(2), the grounds for enhancement must be clearly charged in the information. See Young v. State, 86 So.3d 541 (Fla. 2d DCA 2012). In this case, although the appellant was charged with possessing a firearm, he was never charged with “actually” possessing the firearm.1Cf. Green v. State, 18 So.3d 656 (Fla. 2d DCA 2009) ( ). The state asserts that there is no error because the jury in this case made a specific finding that the appellant actually possessed the firearm. However, a jury finding that the appellant actually possessed a firearm does not cure the charging defect. Cf. Davis v. State, 884...
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