section 775.087(1) enhanced in Florida

2026See State v. Rodriguez, 602 So. 2d 1270, 1272 (Fla. 1992) (“We hold that, when a defendant is charged with a felony involving the ‘use’ of a weapon, his or her sentence cannot be enhanced under section 775.087(1) without evidence establishing that the defendant had personal possession of the weapon during the commission of the felony.”); id. (rejecting the “State’s contention that . . . [the defendant’s] sentence should be enhanced on the theory of constructive or vicarious possession based on the conduct of the codefendant” where the evidence “plainly establishe[d]” defendant did not “have pe

2026See State v. Rodriguez, 602 So. 2d 1270, 1272 (Fla. 1992) (“We hold that, when a defendant is charged with a felony involving the ‘use’ of a weapon, his or her sentence cannot be enhanced under section 775.087(1) without evidence establishing that the defendant had personal possession of the weapon during the commission of the felony.”); id. (rejecting the “State’s contention that . . . [the defendant’s] sentence should be enhanced on the theory of constructive or vicarious possession based on the conduct of the codefendant” where the evidence “plainly establishe[d]” defendant did not “have pe

2014See Williams v. State, 622 So.2d 456, 465 (Fla.1993) (explaining that the state must prove a defendant has actual physical possession of the weapon to impose enhancement under either subsection (1) or (2) of section 775.087); Robins v. State, 602 So.2d 1272 (Fla.1992) (stating “actual physical possession of a weapon during the commission of a crime is required for the offense to be reclassified under section 775.087(1)[.]”); Williams v. State, 656 So.2d 574 (Fla. 1st DCA 1995) (reviewing an order denying a rule 3.800(a) motion and discussing that where a jury specifically finds that “ ‘a firea

2006The Florida Supreme Court has repeatedly held that "actual physical possession of a weapon during the commission of a crime is required for the offense to be reclassified under section 775.087(1)." Robins v. State, 602 So.2d 1272, 1273 (Fla.1992); see Williams v. State, 622 So.2d 456, 465 (Fla. 1993) ("[i]n order for a defendant's sentence to be enhanced pursuant to section 775.087(1)-(2), Florida Statutes (1991), the State must prove that the defendant had actual physical possession of the weapon").

2004See Gonzalez v. State, 585 So.2d 932, 933 (Fla.1991) ("We find that this issue is controlled by Lareau v. State, 573 So.2d 813 (Fla.1991), where we held that although aggravated battery causing great bodily harm can be enhanced pursuant to section 775.087(1) because the use of a weapon is not necessary to cause great bodily harm, the crime of aggravated battery with the use of a deadly weapon is not subject to reclassification because the use of a weapon is an essential element of the crime."); Griffin v. State, 509 So.2d 980, 981 (Fla. 2d DCA 1987) ("Since the information charged only bodily

1991We find that this issue is controlled by Lareau v. State, 573 So.2d 813 (Fla. 1991), where we held that although aggravated battery causing great bodily harm can be enhanced pursuant to section 775.087(1) because the use of a weapon is not necessary to cause great bodily harm, the crime of aggravated battery with the use of a deadly weapon is not subject to reclassification because the use of a weapon is an essential element of the crime.

2026Rock v. State, 392 So. 3d 791 , 792 (Fla. 4th DCA 2024); State v. Collazo, 93 So. 3d 417, 418 (Fla. 4th DCA 2012); Banks v. State, 949 So. 2d 353, 355 (Fla. 4th DCA 2007).

2024See Christian v. State, 313 So. 3d 725 , 728 (Fla. 2d DCA 2020) (“While a finding of either actual or construction possession will support a conviction for possession of a firearm by a felon, case law is clear that a finding of actual possession is necessary to support imposition of the three-year mandatory minimum enhancement under section 775.087(2)(a)1.”); Swain v. State, 226 So. 3d 1002, 1004 (Fla. 1st DCA 2017) (observing that for the offense of possession of a firearm by a convicted felon, “actual possession is required in order to sentence a defendant to a mandatory minimum sentence und

2016Florida law is clear that “when a defendant is charged with a felony involving the ‘use’ of a weapon, his or her sentence cannot be enhanced under section 775.087(1) without evidence establishing that the defendant had personal possession of the weapon during the commission of the felony.” State v. Rodriguez, 602 So.2d 1270, 1272 (Fla.1992); Porter v. State, 737 So.2d 1119, 1119 (Fla. 2d DCA 1999) (recognizing that Rodriguez held that “section 775.087(1) does not permit vicarious enhancement”); see also Chase v. State, 74 So.3d 1138, 1139 (Fla. 2d DCA 2011) (holding that circuit court erred in

2011We agree with the parties that the circuit court erred in reclassifying Mr. Chase’s offense. “[W]hen a defendant is charged with a felony involving the ‘use’ of a weapon, his or her sentence cannot be enhanced under section 775.087(1) without evidence establishing that the defendant had personal possession of the weapon during the commission of the felony.” State v. Rodriguez, 602 So.2d 1270, 1272 (Fla.1992); see also Porter v. State, 737 So.2d 1119, 1119 (Fla. 2d DCA 1999) (citing Rodriguez for the proposition “that section 775.087(1) does not permit vicarious enhancement”).

2015See, e.g., Cleveland v. State, 587 So.2d 1145, 1146 (Fla.1991) (robbery enhanced under robbery statute precluded conviction for use of firearm' while committing felony); Law v. State, 824 So.2d 1055, 1058 (Fla. 5th DCA 2002). (carjacking and burglary convictions enhanced and reclassified under section 775.087(2) precluded additional conviction for possession of firearm in commission of a felony); Boschen v. State, 647 So.2d 1054, 1055 (Fla. 5th DCA 1994) (trafficking in cannabis enhanced under section 775.087(2)(a) for possession of a firearm precluded conviction for possession of machine gun)

2004See Cleveland v. State, 587 So.2d 1145 (Fla.1991) (reversing, on double jeopardy grounds, a conviction for use of a firearm during the commission of a felony where the defendant was convicted of, and sentenced for, the crimes of attempted robbery with a firearm and use of a firearm while committing a felony stemming from a single act); Merrell v. State, 841 So.2d 677 (Fla. 3d DCA 2003); Law v. State, 824 So.2d 1055, 1058 (Fla. 5th DCA 2002) (observing that the supreme court had determined "that when a felony conviction is reclassified and enhanced under section 775.087(2) ... due to the defend

2015See, e.g., Cleveland v. State, 587 So.2d 1145, 1146 (Fla.1991) (robbery enhanced under robbery statute precluded conviction for use of firearm' while committing felony); Law v. State, 824 So.2d 1055, 1058 (Fla. 5th DCA 2002). (carjacking and burglary convictions enhanced and reclassified under section 775.087(2) precluded additional conviction for possession of firearm in commission of a felony); Boschen v. State, 647 So.2d 1054, 1055 (Fla. 5th DCA 1994) (trafficking in cannabis enhanced under section 775.087(2)(a) for possession of a firearm precluded conviction for possession of machine gun)

2004See Cleveland v. State, 587 So.2d 1145 (Fla.1991) (reversing, on double jeopardy grounds, a conviction for use of a firearm during the commission of a felony where the defendant was convicted of, and sentenced for, the crimes of attempted robbery with a firearm and use of a firearm while committing a felony stemming from a single act); Merrell v. State, 841 So.2d 677 (Fla. 3d DCA 2003); Law v. State, 824 So.2d 1055, 1058 (Fla. 5th DCA 2002) (observing that the supreme court had determined "that when a felony conviction is reclassified and enhanced under section 775.087(2) ... due to the defend

2004See Gonzalez v. State, 585 So.2d 932, 933 (Fla.1991) ("We find that this issue is controlled by Lareau v. State, 573 So.2d 813 (Fla.1991), where we held that although aggravated battery causing great bodily harm can be enhanced pursuant to section 775.087(1) because the use of a weapon is not necessary to cause great bodily harm, the crime of aggravated battery with the use of a deadly weapon is not subject to reclassification because the use of a weapon is an essential element of the crime."); Griffin v. State, 509 So.2d 980, 981 (Fla. 2d DCA 1987) ("Since the information charged only bodily

1998See Gonzalez v. State, 585 So.2d 932, 933 (Fla.1991); see also Lareau v. State, 573 So.2d 813, 815 (Fla.1991).

1989See Williams v. State, 358 So.2d 187 (Fla. 4th DCA 1978), reaching the same conclusion as to an aggravated assault with a deadly weapon (§ 784.021(1)(a), Fla. Stat. (1979)).

1981See Williams v. State, 358 So.2d 187 (Fla. 4th DCA 1978), reaching the same conclusion as to an aggravated assault with a deadly weapon (§ 784.021(1)(a), Fla. Stat. (1979)).

2014See Williams v. State, 622 So.2d 456, 465 (Fla.1993) (explaining that the state must prove a defendant has actual physical possession of the weapon to impose enhancement under either subsection (1) or (2) of section 775.087); Robins v. State, 602 So.2d 1272 (Fla.1992) (stating “actual physical possession of a weapon during the commission of a crime is required for the offense to be reclassified under section 775.087(1)[.]”); Williams v. State, 656 So.2d 574 (Fla. 1st DCA 1995) (reviewing an order denying a rule 3.800(a) motion and discussing that where a jury specifically finds that “ ‘a firea

2006The Florida Supreme Court has repeatedly held that "actual physical possession of a weapon during the commission of a crime is required for the offense to be reclassified under section 775.087(1)." Robins v. State, 602 So.2d 1272, 1273 (Fla.1992); see Williams v. State, 622 So.2d 456, 465 (Fla. 1993) ("[i]n order for a defendant's sentence to be enhanced pursuant to section 775.087(1)-(2), Florida Statutes (1991), the State must prove that the defendant had actual physical possession of the weapon").

2013See Mendenhall, 48 So.3d at 742.

2011The question in Mendenhall was whether the trial court could impose a thirty-five-year minimum mandatory sentence under section 775.087(2)(a)3 for attempted second-degree murder with a firearm when the maximum sentence for that offense is thirty years under section 775.082(3)(b)-(c). 48 So.3d at 742 .

2005"An allegation of `use' of a firearm will not sustain an enhanced sentence under section 775.087(2)(a)(3) because a firearm may be used to inflict serious bodily injury without being discharged, and the statute requires that the weapon be discharged for the enhancement to apply." Rogers v. State, 875 So.2d 769, 771 (Fla. 2d DCA 2004) (citing Altieri v. State, 835 So.2d 1181 (Fla. 4th DCA 2002)).

2004See Altieri v. State, 835 So.2d 1181, 1183 (Fla. 4th DCA 2002).

2002Thus, although in Merritt we characterized the statute as an "enhancement statute" to emphasize that it resulted in greater penalties for already-enumerated offenses which qualified under the statute, rather than itself creating new offenses, there is a qualitative difference between a statute which reclassifies enumerated offenses committed against law enforcement officers and enhancement statutes such as the habitual offender statute, "which cut across some or all criminal statutes." State v. Brown, 476 So.2d 660, 662 (Fla. 1985) (holding that a penalty could not be enhanced under section 77

1986State v. Brown, 476 So.2d 660 (Fla.1985).

1984Brown v. State, 358 So.2d 92 (Fla. 4th DCA), cert. denied, 364 So.2d 881 (Fla. 1978); Earnest v. State, 351 So.2d 957 (Fla. 1977).

1979See Brown v. State, 358 So.2d 92 (Fla. 4th DCA 1978).

2026See Hatten, 203 So. 3d at 145-46; see also Wynn v. State, 277 So. 3d 281 , 283 (Fla. 5th DCA 2019) (once the court imposed the twenty-five-year mandatory minimum under section 775.087(2)(a)3., it could not exceed the statutory maximum for the offense).

2026Rock v. State, 392 So. 3d 791 , 792 (Fla. 4th DCA 2024); State v. Collazo, 93 So. 3d 417, 418 (Fla. 4th DCA 2012); Banks v. State, 949 So. 2d 353, 355 (Fla. 4th DCA 2007).

2024See Christian v. State, 313 So. 3d 725 , 728 (Fla. 2d DCA 2020) (“While a finding of either actual or construction possession will support a conviction for possession of a firearm by a felon, case law is clear that a finding of actual possession is necessary to support imposition of the three-year mandatory minimum enhancement under section 775.087(2)(a)1.”); Swain v. State, 226 So. 3d 1002, 1004 (Fla. 1st DCA 2017) (observing that for the offense of possession of a firearm by a convicted felon, “actual possession is required in order to sentence a defendant to a mandatory minimum sentence und

2019See Bienaime v. State, 213 So. 3d 927, 929 (Fla. 4th DCA 2017) (requiring the State “to allege grounds for enhancement in the charging document” to pursue an enhanced mandatory sentence under the 10-20-Life statute).

2017Young v. State, 219 So. 3d 206, 210-11 (Fla. 5th DCA 2017).

2017Young v. State, 219 So.3d 206, 210-11 (Fla. 5th DC.A 2017).

2017See Mendenhall v. State, 48 So.3d 740, 742 (Fla. 2010).