State v. Smith

• Decision Date: 02 June 1992
• Docket Number: No. 91-1342,91-1342
• Citation: 601 So.2d 263
• Parties: 17 Fla. L. Weekly D1434 STATE of Florida, Appellant, v. Joe Hilton SMITH, Appellee.
• Court: Florida District Court of Appeals

Page 263

601 So.2d 263

17 Fla. L. Weekly D1434

STATE of Florida, Appellant, v. Joe Hilton SMITH, Appellee.

No. 91-1342.

District Court of Appeal of Florida,

First District.

June 2, 1992.

Robert A. Butterworth, Atty. Gen., Sara D. Baggett, Asst. Atty. Gen., for appellant.

Nancy A. Daniels, Public Defender, Carol Ann Turner, Asst. Public Defender, for appellee.

WEBSTER, Judge.

In a 2-count amended criminal information, appellee (defendant below) was charged with sale of cocaine and possession of cocaine with intent to sell, respectively. ¹ Each count of the amended information also charged that, "in the course of committing the offense[, defendant] had in his possession a semiautomatic firearm and its high-capacity detachable box magazine, as defined in and contrary to Section 775.087(2)(a) and (b), Florida Statutes." A jury found defendant guilty, as charged, of both offenses. At the sentencing hearing, the trial court concluded that the evidence presented at trial had been legally insufficient to support the jury's findings that, when defendant committed the drug offenses charged, he had "had in his possession a semiautomatic firearm and its high-capacity detachable box magazine." Therefore, the trial court declined to impose for either offense the 8-year minimum mandatory sentence contained in Section 775.087(2), Florida Statutes (1989). Instead, it sentenced defendant within the recommended guidelines range for each offense. The state appeals. We have jurisdiction. ² Because we conclude that the evidence presented at trial was legally sufficient to support the jury's findings that, at the time he committed each of the charged offenses, defendant "had in his possession a semiautomatic firearm and its high-capacity detachable box magazine," we reverse.

The evidence presented at trial as to whether defendant "had in his possession a semiautomatic firearm and its high-capacity detachable box magazine" at the time he committed the offenses charged, viewed in a light most favorable to the state, can be summarized as follows: Kenneth Truxell, an acquaintance of defendant's who had, himself, been arrested on drug-related charges, was persuaded by employees of the Leon County Sheriff's Office to attempt to make "a controlled buy" of crack cocaine from defendant. Truxell drove to defendant's residence, accompanied by a number of deputies. He was searched to ensure that he had no drugs on his person; given two $20 bills which had been photocopied as a means of identification; and told to enter defendant's residence and attempt to purchase crack cocaine with the money. Truxell knocked on the door. He was let into the home by Hugh Lee Ott, a friend of defendant's who sometimes stayed with defendant.

Once inside the home, Truxell proceeded to defendant's bedroom. There he found defendant, seated on the bed, and "a couple of friends" of defendant's, who were seated in chairs talking to defendant. Truxell asked defendant if he had any cocaine. Defendant "pulled out a few rocks and [Truxell] purchased a five dollar hit." Using a pipe provided by defendant, Truxell smoked the "five dollar hit" in the presence of defendant and defendant's two "friends." After he had smoked the "five dollar hit," Truxell developed a case of "cold feet," and left. He told the deputies that defendant had drugs in the home. However, because he had come out without any drugs, he was told to go back into the home and make a purchase.

Truxell reentered the home, and again proceeded to defendant's bedroom. This time, defendant was alone in the bedroom. Truxell asked defendant for "forty dollars worth" of cocaine. Defendant again removed some cocaine rocks from a bag which had been in his pocket, and gave them to Truxell. In return, Truxell gave defendant the two $20 bills which had been provided by the deputies. Truxell then left, delivering the cocaine to the deputies.

Within minutes of Truxell's departure, the deputies went to the house and executed arrest and search warrants. Defendant and Ott each had one of the $20 bills with which Truxell had been instructed to purchase cocaine. In defendant's bedroom, the deputies found candles, "a set of balance scales commonly used to weigh drugs" and a police radio scanner. Also in defendant's bedroom, in a nightstand immediately adjacent to the bed, the deputies found twelve pieces of crack cocaine, weighing approximately 3.3 grams; and a small bag containing a quantity of marijuana. Finally, several weapons were found in the bedroom. In particular, a ".45 auto-caliber semiautomatic carbine" with a "detachable box magazine" capable of being loaded with thirty "centerfire cartridges," was found next to the nightstand, within reach of the bed and the drugs. The carbine belonged to defendant; had been next to the nightstand during the transactions which had taken place between Truxell and defendant; and was in good working order.

Section 775.087(2)(a), Florida Statutes (1989), provides, in relevant part, that:

Any person who is convicted of ... the sale, manufacture, delivery, purchase, or possession with intent to distribute any controlled substance and who had in his possession a semiautomatic firearm and its high-capacity detachable box magazine ... shall be sentenced to a minimum term of imprisonment of 8 calendar years. ³

Definitions for the terms "high-capacity detachable box magazine" and "semiautomatic firearm" are found in subsections (2)(b)1. and (2)(b)2, respectively. The uncontroverted evidence at trial established that the carbine found in defendant's bedroom met the definition of a "semiautomatic firearm"; and that it was equipped with a "high-capacity detachable box magazine." Defendant concedes as much on appeal. Instead, he continues to rely on the argument that the evidence presented at trial was legally insufficient to support the jury's findings that he "had [the semiautomatic carbine] in his possession" during the commission of either of the offenses charged. The state, on the other hand, argues that there was sufficient evidence to permit the jury to reach the conclusions it did.

We believe that the issue presented by this appeal involves a mixed question of law and fact. First, the meaning of the phrase "had in his possession," as used in the statute, must be ascertained. Then the evidence presented at trial must be examined to determine whether, when viewed in a light most favorable to the state, that evidence was sufficient to support the jury's findings that, at the time defendant committed the offenses with which he was charged, he did have the semiautomatic carbine "in his possession."

The portion of Section 775.087(2)(a), Florida Statutes (1989), upon which the state relies to support its argument that the trial court was obliged to sentence defendant to an 8-year mandatory minimum prison term for the two offenses of which defendant was convicted was only recently added to that statute by Chapter 89-306, Section 3, Laws of Florida. We have been unable to discover any decisions which address the meaning of the language used in this relatively recent amendment. However, that portion of Section 775.087(2)(a) which requires a 3-year minimum mandatory sentence for "[a]ny person ... convicted of ... murder, sexual battery, robbery, burglary, arson, aggravated assault, aggravated battery, kidnapping, escape, breaking and entering with intent to commit a felony, or aircraft piracy, or any attempt to commit the aforementioned crimes ... who had in his possession a 'firearm' ... or 'destructive device' " (emphasis added), has been in existence since 1975 (Ch. 75-298, Sec. 3, Laws of Fla.); and has been the subject of construction in a number of decisions.

In Earnest v. State, 351 So.2d 957 (Fla.1977), our Supreme Court was called upon to decide whether the 3-year minimum mandatory sentence provision found in Section 775.087(2) applied to one convicted of armed robbery " 'not predicated on her personal possession of the firearm but rather on her active and knowing aid to him who did possess it.' " Id. at 958. The Court described such a fact situation as involving what it referred to as "vicarious possession" of a firearm. Because the legislature had "not unequivocally expressed an intention" that the 3-year minimum mandatory sentence provision apply to such cases of "vicarious possession" of firearms, the Court concluded that it did not. Id. at 959. Subsequent decisions which have applied the holding in Earnest to preclude imposition of the 3-year minimum mandatory sentence when a codefendant or accomplice actually had the firearm (i.e., when the defendant had nothing more than what the Supreme Court had referred to as "vicarious possession") include Bell v. State, 589 So.2d 1374 (Fla. 1st DCA1991); Hicks v. State, 583 So.2d 1106 (Fla. 2d DCA 1991); and Bellinger v. State, 514 So.2d 1142 (Fla. 1st DCA1987). ⁴

More recently, in Williams v. State, 517 So.2d 681 (Fla.1988), aff'g, 502 So.2d 1307 (Fla. 3d DCA1987), the Court was presented with the following issue: "[W]hether the three-year mandatory minimum required by section 775.087(2) ... applies to a burglary conviction if the defendant was not in possession of a firearm when he initiated the burglary but only acquired the firearm after entering the premises." Id. at 681-82 (footnote omitted). Noting that there was "no evidence that the legislature intended any distinction based upon the timing of the perpetrator's possession" (id. at 682), the Court concluded that "whatever may be the efficacy of the mandatory minimum provision, its intent clearly was to discourage the possession of a firearm at any time during the course of a criminal endeavor." Id. Accordingly, the Court answered the question presented in the affirmative, holding that the 3-year minimum mandatory sentence provision did apply.

Of greater interest for the purpose of this appeal, however, is the fact that, in Williams, both the Third District and the...