Opinion
No. 76-637.
February 4, 1977. Rehearing Denied March 25, 1977.
Appeal from the Circuit Court for Broward County, Robert W. Tyson, Jr., J.
Richard L. Jorandby, Public Defender, and Richard S. Power, Asst. Public Defender, West Palm Beach, for appellant.
Robert L. Shevin, Atty. Gen., Tallahassee, and Robert L. Bogen, Asst. Atty. Gen., West Palm Beach, for appellee.
Appellant was adjudged guilty of shooting into an occupied dwelling and was sentenced to seven years' imprisonment. In imposing the sentence the trial court invoked Section 775.087(2), Florida Statutes, thereby making appellant ineligible for parole until he had served a minimum term of imprisonment of three years. The sole point on appeal is whether the judge erred in imposing a mandatory three year minimum imprisonment under § 775.087.
The seven year sentence imposed by the trial court is not excessive in that the maximum sentence for this offense, under Section 790.19, Florida Statutes, is fifteen years. However the offense for which appellant was convicted is not one of the enumerated offenses under § 775.087(2) for which the possession of a "firearm" during the commission thereof, requires a mandatory minimum three years' imprisonment before the defendant is eligible for parole. Since appellant was not convicted of one of the crimes set forth in § 775.087(2), he may not be sentenced under this statute.
Accordingly appellant's conviction is affirmed and the case is remanded with instructions that the trial court enter an appropriate order striking from appellant's sentence the words "Mandatory Minimum 3 Yr. Sentence, F.S. 775.087(2)."
CROSS, ALDERMAN and LETTS, JJ., concur.