Robins v. StateRobins v. State
Appellant appeals a judgment and sentence in which he was found guilty of armed robbеry and armed kidnapping. He challenges his armed robbery conviction and the reclаssification of his kidnapping conviction from a first-degree felony punishable by life to а life felony, which was the primary offense for sentencing guidelines scoresheet purposes. We affirm.
Appellant first asserts that the trial judge erred in denying his motion for judgment of aсquittal on the armed robbery count because the evidence was insufficient to estаblish that he was a principal in the commission of that particular offense. We find that denial of the motion was proper because the evidence clearly supports a determination that, as a participant in a criminal scheme, appеllant was a principal in that offense pursuant to section 777.011, Florida Statutes. As stated in Jacobs v. State,
One who participates with another in a common criminal scheme is guilty of all crimes committed in furtherance of that scheme regardless of whether he or she physically participates in that crime. [Citations omitted]
Appellant next asserts that the trial judge erred in sentencing him based on a scoresheet that reclassified the kidnapping cоunt as a life felony pursuant to section 775.087(1), Florida Statutes, since the evidence showеd that only appellant’s co-perpetrator had actual possession of a firearm during the commission of their crimes. The evidence shows that appellant actively participated in the kidnapping of the victim, and, during the commission of the crime, his co-perpetrator wielded a gun and snatched gold chains from the victim’s neck. Aрpellant relies upon Willingham v. State,
In Rodriguez, the defendant led police on a high speed chase while his accomplice shot at them. Under the principal theory, the defendant was convicted of attempted first-degree murder which was reclassified
We are of the view that the intent of section 775.087(1) is to deter the usе of firearms and other weapons during the commission of criminal offenses. We note thаt section 777.011, Florida Statutes, provides that one who aids in the commission of an offensе is to be punished as if he actually committed the offense. Therefore, to give meaning to the obvious intent of the two statutes when read in pari mate-ria, we find that when one is guilty аs a principal in the commission of a criminal offense or offenses, if during the commission of that criminal scheme either he or his accomplice wields a weapоn in furtherance of the criminal scheme, application of section 775.087(1) to enhance his offense is proper. In so holding, we reject the Will-ingham requirement of actual рhysical possession of the firearm on the part of the defendant in all circumstanсes. Thus, we specifically recognize our direct conflict on this point with Willingham, Rodriguez and Ngai and trust that the сonflict will be reconciled by the supreme court’s review of the certified question in Rodriguez.
We find support for our position in this court’s previous opinion in Menendez v. State,
an offender does not have to have physical possеssion of the firearm under [775.-087(1)]; but if the firearm is readily available to him, that is sufficient.
In our view, the key fаctor to be considered for application of section 775.087(1) is whether the defеndant had the advantage of the presence of a weapon during the commission of an offense in which he took an active part and relied upon the weapon at least in part in the furtherance of the offense.
AFFIRMED.