561 So. 2d 459 | Fla. Dist. Ct. App. | 1990
STATE of Florida, Appellant,
v.
Richard LEATHERWOOD, Appellee.
District Court of Appeal of Florida, Second District.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Wendy Buffington, Asst. Atty. Gen., Tampa, for appellant.
James Marion Moorman, Public Defender, Bartow, and Kevin Briggs, Asst. Public Defender, Bartow, for appellee/cross appellant.
PARKER, Judge.
The state appeals the trial court's imposition of a sentence upon Richard Leatherwood of five years' probation for convictions of aggravated assault and shooting into an occupied vehicle. As to the aggravated assault charge, the jury found that a firearm was used. Leatherwood cross appeals and seeks a new trial based upon evidentiary rulings of the trial court during the trial. We find the only issue which merits discussion is the issue raised by the state's appeal and reverse the probationary sentence.
Consistent with section 775.087(2)(a), Florida Statutes (1987)[1] and this court's decision in State v. Sesler, 386 So.2d 293 (Fla.2d DCA 1980), the trial court was required to sentence Leatherwood to three years in state prison as the minimum sentence for possessing a firearm during the commission of the aggravated assault even though it exceeded the recommended guidelines sentence of any nonstate prison sanction. See Fla.R.Crim.P. 3.701(d)(9).[2]
We reverse the sentence of probation and remand for a new sentencing hearing, with directions to impose the mandatory term required under section 775.087(2)(a).
Reversed and remanded.
FRANK, A.C.J., and ALTENBERND, J., concur.
NOTES
[1] That statute provides:
775.087 Possession or use of weapon; aggravated battery; felony reclassification; minimum sentence.
(2)(a) Any person who is convicted of: ... aggravated assault... .
and who had in his possession a "firearm," as defined in s. 790.001(6), ... shall be sentenced to a minimum term of imprisonment of 3 calendar years.
[2] That rule provides:
Mandatory Sentences: For those offenses having a mandatory penalty, a scoresheet should be completed and the guideline sentence calculated. If the recommended sentence is less than the mandatory penalty, the mandatory sentence takes precedence. If the guideline sentence exceeds the mandatory sentence, the guideline sentence should be imposed.