657 So. 2d 923 | Fla. Dist. Ct. App. | 1995
Kenneth Odom was convicted of four life felonies and one first-degree felony punishable by life. We affirm the convictions, but reverse the sentences because of errors which the state has conceded.
On each life felony, the defendant was sentenced to a term of forty-five years. Pursuant to section 775.082(3)(a), Florida Statutes (1991), when a court imposes a term of years for a life felony, the sentence is limited to forty years. See Wilson v. State, 622 So.2d 529 (Fla. 2d DCA 1993).
The defendant was also given a minimum mandatory sentence of three years as part of his sentence for the offense of robbery with a firearm. However, there was no testimony or jury finding that the defendant had possession of a firearm during the crimes, although his co-perpetrator did. Vicarious possession of a firearm will not support the imposition of the three-year minimum mandatory under section 775.087, Florida Statutes (1991). See Earnest v. State, 351 So.2d 957 (Fla.1977); Poiteer v. State, 627 So.2d 526 (Fla. 2d DCA 1993).
We affirm the convictions but reverse and remand for resentencing in accordance with this opinion.
