McGowan v. State
| Decision Date | 08 August 1978 |
| Docket Number | No. 77-2193,77-2193 |
| Parties | Earl McGOWAN, Appellant, v. The STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Bennett H. Brummer, Public Defender and Elliot H. Scherker, Asst. Public Defender, for appellant.
Robert L. Shevin, Atty. Gen., and Steven R. Jacob, Asst. Atty. Gen., for appellee.
Before HAVERFIELD, C. J., and BARKDULL and HUBBART, JJ.
Defendant, Earl McGowan, appeals his conviction and "sentence" for robbery and unlawful possession of a firearm while engaged in a criminal offense.
We find defendant's first contention concerning the trial court's failure to instruct on the element of specific intent to be without merit. See Bell v. State, 354 So.2d 1266 (Fla.3d DCA 1978).
McGowan secondly argues that the trial court erred in ordering, pursuant to Section 775.087, Florida Statutes (1975), that he serve a minimum of three years imprisonment prior to being eligible for parole where the evidence adduced at trial established that he was not in actual possession of a firearm during the commission of the robbery with which he was charged.
The trial judge in the instant case withheld imposition of sentence and placed McGowan on ten years probation. As a special condition of probation the judge ordered that McGowan be imprisoned for seven years and further that he not be eligible for parole until he served three years pursuant to Section 775.087, Florida Statutes (1975). The judge also directed that McGowan be eligible for gain time under Sections 944.27, 29, Florida Statutes (1975).
Trial courts of this state have the general authority to require incarceration as a condition of probation for felony offenses pursuant to the general condition provisions of Section 948.03, Florida Statutes (1975). State v. Jones, 327 So.2d 18 (Fla.1976). When incarceration is imposed as a condition of probation, such incarceration constitutes a condition of probation and not a sentence. See STATE V. WILLIAMS, 237 SO.2D 69 (FLA.2D DCA 1970 )1; See also Fla.R.Crim.P. 3.790(a).
Nevertheless, it appears that the trial judge imposed the condition that McGowan serve three of the seven years incarceration only because of the dictates of Section 775.087, Florida Statutes (1975). To come within the purview of this statute a defendant must have actual, not constructive possession of a firearm. Earnest v. State, 351 So.2d 957 (Fla.1977). The evidence in the record reflects...
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Postell v. State, 79-1376
...of the crime involved. Earnest v. State, 351 So.2d 957 (Fla.1977); Johnson v. State, 349 So.2d 1190 (Fla.1977); McGowan v. State, 362 So.2d 335 (Fla. 3d DCA 1978); Arthur v. State, 351 So.2d 60 (Fla. 4th DCA 1977). We are of the view that the enhancement provisions of Section 775.087(1), Fl......
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Burrell v. State
...parole eligibility upon anyone serving a sentence of one year or more. Since probation, technically, is not a sentence, McGowan v. State, 362 So.2d 335 (Fla. 3d DCA 1978), a trial judge could avoid the likelihood of a defendant qualifying for early parole release by imposing a prison term a......
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Olcott v. State, 78-1557
...that when a court imposes incarceration as a condition of probation, the incarceration does not constitute a sentence. McGowan v. State, 362 So.2d 335 (Fla. 3d DCA 1978); State v. Williams, 237 So.2d 69 (Fla. 2d DCA In an amicus curiae brief which we requested in this case, the Florida Paro......
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Crimson v. State, 80-50
...of armed robbery. Arthur v. State, 351 So.2d 60 (Fla. 4th DCA 1977); Earnest v. State, 351 So.2d 957 (Fla.1977); McGowan v. State, 362 So.2d 335 (Fla. 3d DCA 1978). Therefore, we find it was error to give the appellant a three-year minimum sentence upon conviction, when he was not present a......