James v. StateJames v. State
Appellant, Ricardo James, was tried by jury and convicted of the aggravated battery of Edna Beard on January 7, 2000 (count I); shooting into the occupied dwelling of Edna Beard on February 26, 2000 (count II); the aggravated assault of Edward Beard on February 26, 2000 (count III); and possession of a firearm by a convicted felon on February 26, 2000 (count IV). James was sentenced to sixty-five years in prison. On appeal, he challenges his convictions on the basis that the trial court improperly allowed the State to reveal to the jury that one of his four prior felony convictions was a drug offense. James also challenges his sentence on various grounds, including the argument that he was improperly sentenced on count IV under
Procedural background
At the original sentencing hearing on April 11, 2002, the trial court sentenced James to thirty years on count I as a habitual felony offender; twenty years on count II under the 10/20/Life statute; twenty years on count III with a minimum mandatory of twenty years under the 10/20/Life statute; and twenty years on count IV.1 Count I was to run consecutive to counts II, III and IV; and counts II, III and IV were to run concurrent with each other. In total, appellant was sentenced to fifty years incarceration.
On February 14, 2003, James‘s appellate counsel filed a motion to correct sentencing error pursuant to
At the hearing on the motion to correct sentence, a new prosecutor appeared on behalf of the State. On count II, the State agreed that James should have been sentenced to fifteen years pursuant to
The new prosecutor also told the court that it was mistakenly informed at the initial sentencing hearing that it could not
James agreed that he should be sentenced to fifteen years on count IV, but not under the 10/20/Life statute. James‘s counsel also argued that count IV could not be sentenced pursuant to the 10/20/Life statute since the jury was not asked to determine whether he actually possessed the firearm. The State then informed the trial judge that if he agreed that count IV triggered the three-year minimum mandatory under the 10/20/Life statute, the sentence was required to run consecutively.
The trial judge remained concerned over whether count IV could run consecutively, stating “[t]he only thing that troubles me, quite candidly, is the issue regarding count four and whether I run that consecutive or not.” The court then issued its ruling on re-sentencing, vacating the original sentences on counts II and IV:
[As to count II] I‘m going to resentence him and sentence him to 15 years in Florida State Prison to run consecutive to count one and concurrent to three and four.3 As to count four, I‘m going to resentence him to 15 years in Florida State Prison with a three year minimum mandatory under the 10, 20, life statute. And that is going to run consecutive to all other counts based upon 775.087 and the argument made by the State. The sentencing as to one and three will remain in full force and effect. (emphasis added).
Thus, after the trial judge ruled on James‘s motion to correct sentence, count IV was now running consecutive to count II and James‘s total period of incarceration rose from fifty years to sixty-five years.
Discussion
James argues that in his motion to correct sentence, he merely sought to have the sentences on counts II and IV corrected to fifteen years on each count instead of twenty. James maintains that the trial judge correctly reduced the sentences from twenty to fifteen years as requested, but erred in classifying count IV as a 10/20/Life offense. Additionally, James argues that the trial court violated North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), as qualified by Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989), in restructuring the concurrent/consecutive relationship between counts II, III and IV, thereby making his sentence harsher by adding an additional fifteen years to the original sentence.
We find that James was improperly sentenced under the 10/20/Life statute as to count IV. Count IV of the information charged James with possession of a
We interpret section 775.087(2)(a)(1) to be a sentencing enhancement statute, not a statute prescribing a new offense. The statute enhances the sentence of a defendant who “actually possessed” a firearm during the commission of the crime. Possession of a firearm by a convicted felon can be proven either by an actual or a constructive possession theory. See Daniels v. State, 718 So.2d 1274 (Fla. 2d DCA 1998); Wilcox v. State, 522 So.2d 1062 (Fla. 3d DCA 1988). Thus, in order to apply the enhancement provision of section 775.087(2)(a)(1), the State must prove actual possession. And, pursuant to the supreme court‘s decision in State v. Overfelt, 457 So.2d 1385 (Fla.1984), the determination would require a jury finding.
In Bundrage, the court reversed the three-year mandatory minimum sentence that was imposed for possession of a firearm by a convicted felon, stating that
[T]here is no indication on the verdict form that would distinguish the possession as being actual, rather than constructive. The jury found Bundrage “guilty of possession of a firearm by a convicted felon, as charged in the information.“... Even if the facts presented to the jury would only support an actual possession theory, the supreme court‘s decision in Overfelt and its progeny require a jury finding of actual possession to justify imposition of the three-year minimum mandatory sentence. See Tucker v. State, 726 So.2d 768 (Fla.1999); State v. Hargrove, 694 So.2d 729 (Fla.1997); State v. Tripp, 642 So.2d 728 (Fla.1994).
814 So.2d at 1135 (citations and footnote omitted)(emphasis added).
The instant case is similar to Bundrage. The jury found James guilty of count IV, stating “[t]he Defendant is Guilty of Possession of a firearm by a Convicted Felon as charged in the Information.” The information did not use the words “actually” possess in the charge, and the verdict form on count IV did not have a special finding that James “actually possessed” the weapon during the commission of these crimes.4 Indeed, under
We note that the jury did make separate, specific findings on counts II (shooting into an occupied dwelling) and III (aggravated assault with a firearm) that James “actually possess[ed]” a firearm during the commission of those crimes. Although counts II, III and IV arise out of the same criminal episode, we can find no authority, and the State cites none, that
Because the trial judge erred in sentencing James under the 10/20/Life statute on count IV, we must reverse and remand for re-sentencing. The trial judge specifically stated that he was running count IV consecutive because of
We need not decide if the current sentence violates the restrictions of Pearce since on remand the trial judge will need to make a new determination as to whether to run count IV consecutive to counts II and III. Accordingly, on remand, the trial court has the discretion, but is not required, to run the sentence under count IV consecutive to counts II and III. “`A trial court can legally restructure a defendant‘s sentences by changing concurrent terms to consecutive terms, as long as the new sentence is not found to be vindictive.‘” Richardson v. State, 821 So.2d 428, 431 (Fla. 5th DCA 2002) (quoting Buchanan v. State, 781 So.2d 449, 450 (Fla. 5th DCA 2001)).
We note that in cases where the defendant has filed a motion to correct illegal sentence and subsequently challenged re-sentencing on the basis that a harsher sentence was imposed, Florida courts have found the Pearce presumption of vindictiveness applicable, unless there was some “independent legal basis or identifiable conduct” on the defendant‘s part, other than the filing of the motion. See, e.g., Richardson, 821 So.2d at 431; see also Blackshear v. State, 531 So.2d 956 (Fla. 1988); Everett v. State, 824 So.2d 211 (Fla. 1st DCA 2002). If, on remand, the trial court exercises its discretion to run count IV consecutive to counts II or III, it may do so only with independent legal justification.
Affirmed in part, reversed in part, and remanded.
STONE and WARNER, JJ., concur.
Notes
RICARDO RICHARD JAMES on the 26th day of February, A.D.2000,... having previously been convicted on January 10, 1996, of the felony crime of Delivery of Cocaine, in the Circuit Court of the Seventeenth Judicial Circuit, In and For Broward County, Florida, did then and there unlawfully own or have in his possession a firearm, contrary to F.S. 790.23 and F.S. 775.087 .... (emphasis in original).