ROBERTS v. STATE (2024)

The defendant raises four issues on appeal. We find merit in only one; as to the other three, we affirm without discussion. As to the meritorious issue, the State has appropriately conceded error.

The defendant's sentence on Count 1 included a twenty-five-year mandatory minimum term of imprisonment for actual possession or discharge of a firearm. However, he was not charged with actual possession or discharge of the firearm, and the jury did not make a specific finding in this regard. Additionally, the judgments for Counts 1 and 3 incorrectly contain references to section 775.087, Florida Statutes (2020).

Vicarious liability will not substitute for actual possession or discharge of the firearm for this sentencing requirement. Squire v. State, 278 So. 3d 153, 156 (Fla. 4th DCA 2019). Here, there was no allegation, evidence, or jury finding of actual possession or discharge of the firearm by the defendant. Rather, through the allegations, evidence, and jury findings, there is no question the accomplice was the party who had actual possession of, and discharged, the firearm.

We, therefore, reverse the imposition of the twenty-five-year mandatory minimum sentence for Count 1. As with Squire, a resentencing hearing is not required. We remand with instructions to the trial court to ministerially amend (1) the judgment as to Counts 1 and 3 to delete the references to section 775.087, Florida Statutes (2020), and (2) the written sentence entered for Count 1 to delete the twenty-five-year mandatory minimum sentence.

Affirmed in part, reversed in part, and remanded with instructions.

Per Curiam.

Ciklin, Levine and Conner, JJ., concur.