Peck v. State, 82-279
Decision Date | 26 January 1983 |
Docket Number | No. 82-279,82-279 |
Parties | James Manford PECK, Appellant, v. STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Jerry Hill, Public Defender, and Paul C. Helm, Asst. Public Defender, Bartow, for appellant.
Jim Smith, Atty. Gen., Tallahassee, and Charles Corces, Jr., Asst. Atty. Gen., Tampa, for appellee.
The state charged James Manford Peck in a two-count information with 1) kidnapping (of six persons), in violation of section 787.01, Florida Statutes (1981), and 2) robbery with a firearm (of one of the six persons), in violation of section 812.13, Florida Statutes (1981).
After a bench trial, the court orally adjudged appellant guilty as charged and orally sentenced him "for a term of 20 years on kidnapping, and 20 years on the robbery with a weapon, with a minimum of three years mandatory." Thereafter, it rendered a written order convicting him of both crimes and sentencing him to concurrent terms of imprisonment of 20 years with three-year mandatory minimums. Further, its order required him to pay $102 in court costs and $10 to the Crimes Compensation Fund.
Appellant argues that the trial court erred in sentencing him in the written order to a three-year mandatory minimum on the kidnapping conviction. Also, he contends that the court erred in imposing court costs and in requiring him to make payments to the Crimes Compensation Fund. We agree with both assertions.
In order for a three-year mandatory minimum to apply on a conviction pursuant to section 775.087(2), the state must allege in the information and prove at trial that the defendant possessed a "firearm" or "destructive device" during the commission of the crime. See Lawson v. State, 400 So.2d 1053 (Fla. 2d DCA 1981). Here, the information did not charge appellant with possession of a firearm during the commission of the kidnapping and the trial court did not so find. Thus, we remand with directions to strike from the order the three-year mandatory minimum on the kidnapping, conviction. 1
The trial court adjudged appellant indigent prior to trial and appointed the public defender to represent him. Therefore, we further instruct the court, on remand, to strike the portion of the order requiring him to pay $102 in court costs and $10 to the Crimes Compensation Fund. Engle v. State, 407 So.2d 641 (Fla. 2d DCA 1981).
Accordingly, we affirm the convictions and the robbery sentence but remand for correction of the...
To continue reading
Request your trial-
Bryant v. State, 99-0220.
...device' during the commission of the crime." Gibbs v. State, 623 So.2d 551, 555 (Fla. 4th DCA 1993); see also Peck v. State, 425 So.2d 664 (Fla. 2d DCA 1983). No such firearm allegation or reference to section 775.087(2) was made in the information to put appellant on notice that he was bei......
-
Altieri v. State, 4D01-925.
...at trial that the defendant possessed a `firearm' or `destructive device' during the commission of the crime. See Peck v. State, 425 So.2d 664, 665 (Fla. 2d DCA 1983)." Gibbs, 623 So.2d at 555. We conclude that the imposition of a three year mandatory minimum sentence in this case is consis......
-
Faria v. State, No. 95-1603
...(Fla.1992); Stripling v. State, 602 So.2d 663 (Fla. 3d DCA 1992); Belcher v. State, 550 So.2d 1185 (Fla. 5th DCA 1989); Peck v. State, 425 So.2d 664 (Fla. 2d DCA 1983). As this issue was not raised in the prior motion, and the fundamental nature of this sentencing error is sufficient to req......
-
State v. McKinnon
...in count II that McKinnon was found guilty of having displayed or used a firearm during the commission of a felony. See Peck v. State, 425 So.2d 664 (Fla. 2d DCA 1983). It appears that the trial court inferred the requisite finding of the use or display of a firearm from the conviction on t......