387 So. 2d 490 | Fla. Dist. Ct. App. | 1980
Terrance James DAVIS, Appellant,
v.
STATE of Florida, Appellee.
District Court of Appeal of Florida, First District.
*491 Michael J. Minerva, Public Defender, and Margaret Good, Asst. Public Defender, for appellant.
Jim Smith, Atty. Gen., and Carolyn M. Snurkowski, Asst. Atty. Gen., for appellee.
PER CURIAM.
Having considered the briefs and the record, we find no reversible error with regard to appellant's conviction for robbery with a firearm. However, we vacate that portion of the sentence mandating a three-year minimum term and remand the cause for its deletion. The uncontroverted evidence was that appellant did not have actual possession of the gun used in the robbery. Vicarious possession of a firearm is not punishable under Section 775.087(2), Florida Statutes (1979). Earnest v. State, 351 So. 2d 957 (Fla. 1977), Brown v. State, 358 So. 2d 93 (Fla. 4th DCA 1978). Appellant need not be present for the correction of his sentence.
ERVIN and SHAW, JJ., and WOODROW M. MELVIN (Ret.), Associate Judge, concur.