Gardner v. State, 96-3012

CourtCourt of Appeal of Florida (US)
Writing for the CourtPER CURIAM
Citation699 So.2d 798
Parties22 Fla. L. Weekly D2250 Dedric GARDNER, Appellant, v. STATE of Florida, Appellee.
Docket NumberNo. 96-3012,96-3012
Decision Date24 September 1997

Page 798

699 So.2d 798
22 Fla. L. Weekly D2250
Dedric GARDNER, Appellant,
STATE of Florida, Appellee.
No. 96-3012.
District Court of Appeal of Florida,
Fourth District.
Sept. 24, 1997.

Page 799

Richard L. Jorandby, Public Defender, and Allen J. DeWeese, Assistant Public Defender, West Palm Beach, for appellant.

Robert A. Butterworth, Attorney General, Tallahassee, and Barbra Amron Weisberg, Assistant Attorney General, West Palm Beach, for appellee.



We withdraw our previously issued opinion and substitute the following in its place.

We affirm appellant's conviction. His challenge to the admission of evidence of an arrest on a separate charge was not properly preserved for review on the ground raised on appeal. See Tillman v. State, 471 So.2d 32, 35 (Fla.1985).

The trial court adjudicated appellant guilty of attempted robbery with a firearm, sentenced him to a term of seven years incarceration, and checked off the three-year minimum mandatory term for the use of a firearm on appellant's written sentence. Two days later, over defense counsel's objection, the court held a hearing to correct the court's prior oral pronouncement to reflect the minimum mandatory term. Appellant claims that the subsequent sentencing hearing violated Florida Rule of Criminal Procedure 3.800 and the double jeopardy clause. According to the appellant, although his written sentence imposed the three-year minimum mandatory, the trial court made no such oral finding at the original sentencing hearing. See Harrington v. State, 570 So.2d 1140, 1142 (Fla. 4th DCA 1990) (striking parts of written probation revocation order that varied from court's express oral findings).

In State v. Davis, 639 So.2d 1048, 1049 (Fla. 1st DCA 1994), approved on other grounds, 661 So.2d 1193 (Fla.1995), the first district held that the trial court's imposition, upon the defendant's resentencing, of a three-year minimum mandatory term for use of a firearm during the commission of a

Page 800

robbery was proper, even though it resulted in a harsher sentence than that imposed during the original sentencing. "Section 775.087(2), Florida Statutes, contains no provision permitting the trial court to exercise its discretion in imposing a three-year minimum mandatory sentence once a defendant is convicted of certain enumerated felonies." Id. (citations omitted); see also State v. Ross, 447 So.2d 1380, 1382-83 (Fla. 4th DCA 1984)(remanded for...

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6 cases
  • Peterson v. State, 4D99-2850.
    • United States
    • Court of Appeal of Florida (US)
    • November 22, 2000
    ...appellate issue, and no more. A defendant can still raise constitutional issues such as judicial vindictiveness. See Gardner v. State, 699 So.2d 798, 800 (Fla. 4th DCA 1997)(reviewing record under earlier version of section 921.001(5) to determine whether sentence which fell within the sent......
  • Edwards v. State, 97-0821
    • United States
    • Court of Appeal of Florida (US)
    • April 17, 1998
    ...between the sentence received and an earlier plea offer will not alone support a finding of judicial vindictiveness. Gardner v. State, 699 So.2d 798, 800 (Fla. 4th DCA 1997), rev. denied, 707 So.2d 1124 (Fla.1998). Instead, there must be a showing that the enhanced sentence was directly att......
  • Gray v. State, 5D05-3162.
    • United States
    • United States State Supreme Court of Florida
    • December 2, 2005
    ...firearm can be corrected, because imposition of the mandatory sentence is required and is not discretionary. See, e.g., Gardner v. State, 699 So.2d 798 (Fla. 4th DCA 1997); State v. Brendell, 656 So.2d 594 (Fla. 5th DCA 1995). However, these cases are distinguishable, because the minimum ma......
  • Gardner v. State
    • United States
    • United States State Supreme Court of Florida
    • January 28, 1998
    ...1124 707 So.2d 1124 Dedric Gardner v. State NO. 91,681 Supreme Court of Florida. January 28, 1998 Appeal From: Fourth DCA, 699 So.2d 798 Disposition: Rev....
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