D'Alessandro v. Shearer, 77-466CF
| Decision Date | 30 June 1978 |
| Docket Number | Nos. 53124,No. 77-183CF,53143,No. 77-466CF,77-466CF,77-183CF,s. 53124 |
| Citation | 360 So.2d 774 |
| Parties | Joseph P. D'ALESSANDRO, etc., Petitioner, v. John H. SHEARER, Jr., etc., Respondent. In Re Jerry CROOKS, CaseJoseph P. D'ALESSANDRO, etc., Petitioner, v. John H. SHEARER, Jr., etc., Respondent. In Re William OPITZ, Case |
| Court | Florida Supreme Court |
Joseph P. D'Alessandro, State's Atty., in pro per.
Louis S. St. Laurent, Chief Asst. State's Atty., and Patricia A. Kerwin, Asst. State's Atty., Fort Myers, for petitioner.
John H. Shearer, Jr., in pro per.
The State Attorney for the Twentieth Judicial Circuit petitioned this Court for an alternative writ of mandamus to compel the Honorable John Shearer, Lee County Circuit Judge, to perform his legal duty under Section 775.087(2), Florida Statutes. We issued the writ and have received the Judge's response. We have concluded that a final writ should be issued.
The statute requires that any person convicted of certain enumerated criminal offenses, among them robbery, and who had a firearm in his possession at the time of the crime, "shall be sentenced to a minimum term of imprisonment of three calendar years . . . adjudication of guilt or imposition of sentence shall not be suspended, deferred or withheld, nor shall the defendant be eligible for parole or statutory gain-time . . . prior to serving (the) minimum sentence." Section 775.087(2)(b), Florida Statutes. In two cases before Judge Shearer, State v. Crooks and State v. Opitz, the defendants, charged with robbery with a firearm, pleaded guilty as charged. The record shows that Judge Shearer refused to order the mandatory minimum sentences because he believed them to be unconstitutional, despite awareness of our decision upholding the statute against constitutional attack. See Sowell v. State, 342 So.2d 969 (Fla.1977).
In the return and accompanying brief, Judge Shearer defends his inaction with the explanation that he believes he has performed his duty under the statute since he sentenced both defendants to five-year terms of imprisonment. The orders of judgment and sentence bear out that the five-year sentences were imposed. We give Judge Shearer the benefit of the doubt as to his intention. Still, the orders do not recite that the defendants are subject to the mandatory minimum sentence of three years imprisonment. Without such a recitation the authorities will not be on notice that the case calls for service in prison of a minimum of three...
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Allen v. State
...sentence. When a statute mandates a minimum sentence, the sentencing court must specify it on the sentencing order. D'Alessandro v. Shearer, 360 So.2d 774, 775 (Fla.1978) (issuing mandamus requiring trial court to recite that five-year sentences were subject to three-year minimum mandatory ......
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State v. Riley
...trial court fails to impose a required mandatory minimum sentence, the State is entitled to a writ of mandamus. See D'Alessandro v. Shearer, 360 So.2d 774, 775 (Fla.1978); Reno v. Baker, 364 So.2d 538 (Fla. 3d DCA 1978). Similarly, where a trial court imposed a restitution requirement but f......
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...requirements of section 775.087(2), Florida Statutes (1975) 3 were mandatory and could not be circumvented. Accord D'Alessandro v. Shearer, 360 So.2d 774 (Fla.1978). See also Tascano v. State, 393 So.2d 540 (Fla.1981) (holding that the word "shall" in the rule of criminal procedure concerni......
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Aikens v. State
...3d DCA 1982); Kelly v. State, 414 So.2d 1117 (Fla. 4th DCA 1982); Palmer v. State, 416 So.2d 878 (Fla. 4th DCA 1982); D'Alessandro v. Shearer, 360 So.2d 774 (Fla.1978). The trial court's denial of Aikens' Rule 3.850 motion is MILLS and ERVIN, JJ., concur. ...