Reynolds v. State, 83-327

Decision Date20 April 1983
Docket NumberNo. 83-327,83-327
Citation429 So.2d 1331
PartiesAaron Novel REYNOLDS, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals

Aaron N. Reynolds, pro se.

No appearance for appellee.

COWART, Judge.

Petitioner filed a motion to vacate under Florida Rule of Criminal Procedure 3.850 alleging that in violation of the law established in Earnest v. State, 351 So.2d 957 (Fla.1977), in connection with an armed robbery conviction he was sentenced under the mandatory minimum three year sentence provision of section 775.087(2)(a), Florida Statutes (1981), although he alleges the evidence at trial was clear that he had only vicarious, and no actual, possession of a firearm. The motion was denied without an evidentiary hearing but the order denying the motion did not have attached that portion of the files and records of the trial court which conclusively show petitioner is entitled to no relief as required by Rule 3.850.

The motion does state a claim for relief in that under Earnest the sentence imposed on petitioner was in excess of the maximum authorized by law if the statutory three year minimum sentence was imposed when petitioner, who may have actively participated in the robbery without himself actually carrying a firearm or other deadly weapon, nevertheless, was vicariously guilty (as a principal in the first degree under section 777.011, Florida Statutes (1981)) of armed robbery because a co-perpetrator carried a firearm or other deadly weapon as prohibited by section 812.13(2)(a), Florida Statutes (1981). Unless the files and records in the case conclusively show petitioner actually personally possessed a firearm or other deadly weapon while committing the robbery of which he was found guilty, petitioner is entitled to an opportunity at an evidentiary hearing to prove his contention that his conviction for armed robbery was based solely on possession of a firearm or other deadly weapon by a co-perpetrator and not on his own personal possession. If there was competent substantial evidence before the jury upon which the jury could have based a verdict finding defendant guilty of armed robbery because of his personal possession of a firearm or other deadly weapon, petitioner, of course, is entitled to no relief.

The trial court's summary denial of this 3.850 motion was based in part on the point that this issue could have been raised on appeal. It is true that this type of sentencing error could have been...

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20 cases
  • Mann v. Dugger
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • May 14, 1987
    ...review would be warranted even if the Florida Supreme Court had dismissed this claim as procedurally barred. In Reynolds v. State, 429 So.2d 1331, 1333 (Fla.Dist.Ct.App.1983), the court held that a sentence imposed in excess of the maximum allowed by law constitutes fundamental error that c......
  • Adams v. Dugger
    • United States
    • United States Courts of Appeals. United States Court of Appeals (11th Circuit)
    • April 23, 1987
    ...Nova v. State, 439 So.2d 255, 261 (Fla.App.1983) (infringement of right to jury trial held fundamental error); Reynolds v. State, 429 So.2d 1331, 1333 (Fla.App.1983) (sentencing error that could cause defendant to be incarcerated for greater length of time than provided by law is fundamenta......
  • Arnette v. State, 89-1037
    • United States
    • Court of Appeal of Florida (US)
    • September 20, 1990
    ...appeal (Arnett v. State, 526 So.2d 1075 (Fla. 5th DCA 1988). It is fundamental error to impose an illegal sentence. Reynolds v. State, 429 So.2d 1331 (Fla. 5th DCA 1983).3 Arnett v. State, 526 So.2d 1075 (Fla. 5th DCA 1988).4 See Poore v. State, 531 So.2d 161 (Fla.1988).5 And inferentially,......
  • Walcott v. State
    • United States
    • Court of Appeal of Florida (US)
    • November 15, 1984
    ...v. State, 160 So.2d 730 (Fla. 2d DCA 1964).4 See Green v. State, 450 So.2d 1275 (Fla. 5th DCA 1984).5 See, e.g., Reynolds v. State, 429 So.2d 1331 (Fla. 5th DCA 1983); Shieder v. State, 430 So.2d 537 (Fla. 5th DCA 1983); Hough v. State, 448 So.2d 628 (Fla. 5th DCA ...
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