Zarro v. State

District Court of Appeal of Florida

Zarro v. State

390 So. 2d 811, 1980 Fla. App. LEXIS 17748

CourtDistrict Court of Appeal of Florida

DecidedDecember 3, 1980

DocketNo. 80-111

StatusPublished

Cited by3 cases

This text of 390 So. 2d 811 (Zarro v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Zarro v. State, 390 So. 2d 811, 1980 Fla. App. LEXIS 17748 (Fla. Ct. App. 1980).

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Opinion

SHARP, Judge.

Zarro appeals his judgment and sentence after being convicted of robbery with a deadly weapon. He was sentenced to 15 years with a requirement that he serve a mandatory minimum sentence of 3 years pursuant to section 775.087, Florida Statutes (1979).¹

We reject Zarro’s contention that the evidence at trial was insufficient to sustain his conviction. The evidence showed that Zarro and an accomplice robbed one store employee while another accomplice robbed the pharmacist. The three men joined each other in the middle of the store and ran out together. This evidence was sufficient to uphold the jury verdict and the judgment of guilty is affirmed.

However the requirement that Zarro serve a 3 year mandatory minimum sentence must be reversed. Section 775.-087, Florida Statutes (1979) requires the imposition of the mandatory minimum sentence for possession of a firearm during the commission of certain enumerated crimes including robbery. For section 775.087 to apply, the defendant must have a firearm in his actual, not vicarious possession. Earnest v. State, 351 So.2d 957 (Fla.1977); Arthur v. State, 351 So.2d 60 (Fla. 4th DCA 1977). Zarro’s accomplice was carrying a [812]*812firearm, but Zarro was not. Because the firearm was not in Zarro’s possession section 775.087 is not applicable. This cause is remanded to the trial court for resentencing in accordance with this opinion.

AFFIRMED in part and REVERSED in part and REMANDED.

DAUKSCH, C. J., and ORFINGER, J., concur.

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SHARP, Judge.

Zarro appeals his judgment and sentence after being convicted of robbery with a deadly weapon. He was sentenced to 15 years with a requirement that he serve a mandatory minimum sentence of 3 years pursuant to section 775.087, Florida Statutes (1979).¹

We reject Zarro’s contention that the evidence at trial was insufficient to sustain his conviction. The evidence showed that Zarro and an accomplice robbed one store employee while another accomplice robbed the pharmacist. The three men joined each other in the middle of the store and ran out together. This evidence was sufficient to uphold the jury verdict and the judgment of guilty is affirmed.

However the requirement that Zarro serve a 3 year mandatory minimum sentence must be reversed. Section 775.-087, Florida Statutes (1979) requires the imposition of the mandatory minimum sentence for possession of a firearm during the commission of certain enumerated crimes including robbery. For section 775.087 to apply, the defendant must have a firearm in his actual, not vicarious possession. Earnest v. State, 351 So.2d 957 (Fla.1977); Arthur v. State, 351 So.2d 60 (Fla. 4th DCA 1977). Zarro’s accomplice was carrying a [812]*812firearm, but Zarro was not. Because the firearm was not in Zarro’s possession section 775.087 is not applicable. This cause is remanded to the trial court for resentencing in accordance with this opinion.

AFFIRMED in part and REVERSED in part and REMANDED.

DAUKSCH, C. J., and ORFINGER, J., concur.

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390 So. 2d 811, 1980 Fla. App. LEXIS 17748, Counsel Stack Legal Research, https://law.counselstack.com/opinion/zarro-v-state-fladistctapp-1980.

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