Odom v. State

657 So. 2d 923, 1995 Fla. App. LEXIS 7084, 1995 WL 385767

Opinion

FULMER, Judge.

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.

ALTENBERND, A.C.J., and BLUE, J., concur.