Simmons v. State

457 So. 2d 534

Opinion

457 So.2d 534 (1984)

Thomas B. SIMMONS, Appellant,
v.
STATE of Florida, Appellee.

No. 84-284.

District Court of Appeal of Florida, Second District.

September 26, 1984.

Jerry Hill, Public Defender, Bartow, and Amelia Brown, Asst. Public Defender, Tampa, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Robert J. Krauss, Asst. Atty. Gen., Tampa, for appellee.

SCHOONOVER, Judge.

The appellant, Thomas B. Simmons, appeals from a judgment and sentence entered pursuant to a jury verdict finding him guilty of being a convicted felon in possession of a firearm. We affirm appellant's conviction, but find that the trial court erred in sentencing.

The trial court imposed a fifteen-year sentence upon appellant and ordered him to serve a mandatory minimum three-year sentence pursuant to section 775.087(2), Florida Statutes (1983). That section requires the trial court to sentence a person convicted of certain enumerated crimes to a three-year minimum term of imprisonment. Because appellant's crime is not among the offenses enumerated in section 775.087(2), the trial court was without authority to impose the minimum sentence on appellant.

Since the sentence was unlawful, the court committed fundamental error which was not waived by appellant's failure to object in the trial court. Lawson v. State, 400 So.2d 1053 (Fla. 2d DCA 1981).

We, therefore, strike that portion of the sentence imposing a minimum term of imprisonment upon the appellant. Cooper v. State, 360 So.2d 1130 (Fla. 3d DCA 1978). We affirm the judgment and fifteen-year sentence in all other respects.

Affirmed in part, reversed in part.

HOBSON, A.C.J., and BOARDMAN, J., concur.