Boyce v. State

202 So. 3d 456, 2016 Fla. App. LEXIS 15935

Opinion

PER CURIAM.

The appellant challenges the denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse, remand the denial of the motion to the extent that the appellant challenges his ten-year minimum mandatory term imposed for count I pursuant to section 775.087(2), Florida Statutes, for actually possessing a firearm, and order the trial court to strike that portion of the sentence. See State v. Overfelt, 457 So.2d 1385 (Fla.1984) (requiring a jury finding of actual possession to justify imposition of the minimum mandatory sentence pursuant to section 775.087(2)); Arnett v. State, 128 So.3d 87 (Fla. 1st DCA 2013) (holding that minimum mandatory for possessing firearm was illegal where defendant was not charged with being in “actual possession” of the firearm). We affirm the denial of the appellant’s remaining challenges to his sentences.

AFFIRMED in part, REVERSED in part, and REMANDED with directions.

MAKAR, JAY, and M.K. THOMAS, JJ., concur.