Poiteer v. State, 93-02486
| Decision Date | 20 October 1993 |
| Docket Number | No. 93-02486,93-02486 |
| Citation | 627 So.2d 526 |
| Parties | 18 Fla. L. Weekly D2288 Carl POITEER, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Carl Poiteer appeals the summary denial of his motion to correct sentence. We reverse.
Poiteer is serving a fifteen-year sentence for armed robbery. Three years of this sentence represents mandatory time required by section 775.087(2), Florida Statutes (1989). Poiteer sought the deletion of this mandatory term, arguing that "[t]here was no showing and/or evidence presented to establish that defendant was in actual possession of a firearm during commission of the alleged robbery(ies) herein."
The circuit court, denying the motion, found this issue could have been raised on direct appeal, and was therefore inappropriate for collateral attack. See generally Spencer v. State, 389 So.2d 652 (Fla. 1st DCA 1980). However, an unlawful sentence may be contested at any time. Although a defendant may be convicted of robbery with a firearm based on vicarious or constructive possession of the gun (e.g., if it is carried by an accomplice), section 775.087(2) requires actual physical possession before a minimum mandatory term may be imposed for possession of a firearm. Earnest v. State, 351 So.2d 957 (Fla.1977).
Poiteer's motion is based on Bell v. State, 589 So.2d 1374 (Fla. 1st DCA 1991). In accepting a plea from Bell the trial court neglected to determine if a factual basis existed. Bell later moved to vacate the minimum mandatory portion of his sentence, asserting "there was no showing, as required by law, that he was in actual possession of a firearm during the commission of the robbery." 589 So.2d at 1375. The district court concluded that Bell's assertion, if true, constituted fundamental error.
This court has previously determined that it will follow Bell. Anfield v. State, 615 So.2d 853 (Fla.2d DCA 1993); Ahedo v. State, 603 So.2d 80 (Fla.2d DCA 1992). 1 However, the present case suggests the need to explain our position. We hold that the absence of a factual basis during a plea colloquy, or the failure to make specific findings regarding use of a firearm, will not ipso facto entitle a defendant to postconviction relief. In Bell the district court stated it could not "conclusively determine ... whether Bell is now alleging that he did not carry a firearm during the robbery." 589 So.2d at 1376. In our view, the movant must specifically allege that he has been prejudiced by application of section 775.087(2). We therefore decline to follow Bell to the extent it suggests the mere procedural failure to find a factual basis for imposing a minimum mandatory sentence is reversible error.
In the present case Poiteer has sufficiently alleged prejudice. Because the trial court did not reach the merits of the motion, the appellate record lacks the necessary exhibits for us to determine if Poiteer's claim can be refuted. After remand, therefore, it will be incumbent upon the circuit court to determine whether section 775.087(2) was properly invoked in his case. 2
Reversed.
1 A contrary position was taken in ...
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