State v. McKendry, 91-3308

CourtCourt of Appeal of Florida (US)
Writing for the CourtANSTEAD
Citation614 So.2d 1158
Parties18 Fla. L. Week. D518 STATE of Florida, Appellant, v. John McKENDRY, Appellee.
Docket NumberNo. 91-3308,91-3308
Decision Date17 February 1993

Page 1158

614 So.2d 1158
18 Fla. L. Week. D518
STATE of Florida, Appellant,
v.
John McKENDRY, Appellee.
No. 91-3308.
District Court of Appeal of Florida,
Fourth District.
Feb. 17, 1993.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Melvina Racey Flaherty, Asst. Atty. Gen., West Palm Beach, for appellant.

Ronald B. Smith of Waxler & Smith, Stuart, for appellee.

ANSTEAD, Judge.

In this appeal the state asserts error by the trial court in not imposing the five year minimum mandatory sentence for possession of a short-barreled shotgun as provided in section 790.221(2), Florida Statutes (1989). We agree and reverse.

FACTS

John McKendry was tried and convicted of possession of a short-barreled shotgun. The recommended guidelines sentence provided for community control or 12 to 30 months incarceration. However, section 790.221(2) prescribes a five year mandatory minimum term of imprisonment for possession of a short-barreled shotgun.

At sentencing, McKendry's counsel maintained that section 948.01, Florida Statutes (1989), concerning the trial court's discretion to suspend a sentence, authorized a sentence less than the mandatory minimum. The trial court, agreeing that McKendry's record and the facts of the case did not justify five years of imprisonment, and acting under section 948.01(3), sentenced McKendry to five years, but suspended the sentence with credit for time served, and ordered that McKendry be placed on community control for one year followed by three years probation.

Page 1159

LAW

Section 790.221(2), Florida Statutes (1989), as amended in 1989, prescribes the penalty upon conviction for possession of a short-barreled shotgun:

A person who violates this section commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084. Upon conviction thereof he shall be sentenced to a mandatory minimum term of imprisonment of 5 years.

Pre-amendment, the statute stated:

Any person convicted of violating this section is guilty of a felony and upon conviction thereof shall be punished by imprisonment ... not to exceed 5 years.

By its action in 1989, the legislature apparently concluded that the offense of carrying a short-barreled firearm was more serious than perceived pre-amendment, and directed that the previous maximum sentence now be the minimum sentence. It also made the sentence mandatory, thereby removing the sentencing court's discretion.

Rule 3.701(d)(9), Florida Rules of Criminal Procedure (1989), of the sentencing guidelines, 1 provides:

Mandatory Sentences: For those offenses having a mandatory penalty, a scoresheet should be completed and the guideline sentence calculated. If the recommended sentence is less than the mandatory penalty, the mandatory sentence takes precedence. If the guideline sentence exceeds the mandatory sentence, the guideline sentence should be imposed.

(Emphasis supplied).

In contrast with these sentencing provisions, section 948.01(3), Florida Statutes (1989), states:

If it appears to the court ... that the defendant is not likely again to engage in a criminal course of conduct and that the ends of justice and the welfare of society do not require that the defendant presently suffer the penalty imposed by law, the court, in its discretion, may either adjudge the defendant to be guilty or stay and withhold the adjudication of guilt; and, in either case, it shall stay and withhold the imposition of sentence upon such defendant and shall place him upon probation.

Section 948.01(3), in some form or other, has been on the books since 1941.

SCATES

Initially, the state relies heavily on State v. Scates, 585 So.2d 385 (Fla. 4th DCA 1991), and State v. Lane, 582 So.2d 77 (Fla. 4th DCA 1991), which required imposition of a mandatory minimum sentence despite other statutory provisions granting trial judges discretion to withhold...

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4 cases
  • McKendry v. State, 81477
    • United States
    • United States State Supreme Court of Florida
    • May 19, 1994
    ...Gen., and Melvina Racey Flaherty, Asst. Atty. Gen., West Palm Beach, for respondent. GRIMES, Chief Justice. We review State v. McKendry, 614 So.2d 1158 (Fla. 4th DCA 1993), in which the court certified the following question as one of great public DO THE PROVISIONS OF SECTION 948.01, FLORID......
  • State v. Brendell, 94-1749
    • United States
    • Court of Appeal of Florida (US)
    • June 23, 1995
    ...Fla.Stat. (1993); State v. Ross, 447 So.2d 1380 (Fla. 4th DCA), rev. den., 456 So.2d 1182 (Fla.1984). See also State v. McKendry, 614 So.2d 1158 (Fla. 4th DCA), rev. granted, 624 So.2d 267 (Fla.1993), approved, 641 So.2d 45 (Fla.1994). Second, the innovative sentence is violative of Poore v......
  • State v. Robertson, 91-3433
    • United States
    • Court of Appeal of Florida (US)
    • February 17, 1993
    ...for a violation of section 790.221, Florida Statutes (1991), we reverse the sentence of probation on the authority of State v. McKendry, 614 So.2d 1158 (Fla.1993), which involved the identical issue presented here. We certify, however, the following question to the supreme court as of great......
  • McKendry v. State
    • United States
    • United States State Supreme Court of Florida
    • July 30, 1993
    ...267 624 So.2d 267 McKendry (John M.) v. State NO. 81,477 Supreme Court of Florida. July 30, 1993 Appeal From: 4th DCA, 614 So.2d 1158 Disposition: Rev....

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