                                      IN THE DISTRICT COURT OF APPEAL
                                      FIRST DISTRICT, STATE OF FLORIDA

PALANSKI SWAIN,                       NOT FINAL UNTIL TIME EXPIRES TO
                                      FILE MOTION FOR REHEARING AND
      Appellant,                      DISPOSITION THEREOF IF FILED

v.                                    CASE NO. 1D15-3780

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed August 10, 2017.

An appeal from the Circuit Court for Leon County.
Frank E. Sheffield, Judge.

Andy Thomas, Public Defender, and Kathleen Stover, Assistant Public Defender,
Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Virginia C. Harris, Assistant Attorney
General, Tallahassee, for Appellee.




PER CURIAM.

      Appellant, Palanski Swain, was moving out of his ex-girlfriend’s residence in

Gadsden County as their relationship was ending. Swain’s ex-girlfriend drove him

and all of his belongings to the corner of North Monroe Street and Fred George Road

in Leon County. The ride to Leon County was silent, and Swain’s ex-girlfriend was
upset that he was leaving her. Swain’s ex-girlfriend pulled into a Starbucks Coffee

Shop, which was closed, and dropped him off. All of Swain’s belongings were in

two large garbage bags, one of which contained all of his clothing, the other

contained a twenty gauge shotgun. As she pulled away, Swain’s ex-girlfriend called

911 and reported that Swain had a gun in his possession. When police arrived, the

bags were found approximately twenty-five to fifty feet away from the spot where

Swain was standing. The firearm was unloaded and had scratch marks over the serial

number. At trial, Swain was found guilty as charged of alteration of a firearm serial

number (Count 1) and possession of a firearm by a convicted felon (Count 2).

Following trial, he was sentenced to a three-year mandatory minimum sentence

under the sentencing enhancement provided in section 775.087(2)(a)1., Florida

Statutes (2016).

      Both parties agree that insufficient evidence exists to support the conviction

in Count 1, the alteration of the firearm serial number. There was no evidence to

prove proper venue or commission of the crime within the statute of limitations

period. We reverse the conviction in Count 1, vacating it entirely.

      Swain was charged with possession of a firearm by a convicted felon by either

actual or constructive possession. While Swain stipulated at trial that the State had

proved constructive possession, sufficient to convict him of possession of a firearm

by a convicted felon, he contended the State had not proved actual possession, which

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was required to sentence him to a mandatory minimum sentence. The trial court

found that there was sufficient evidence to support a finding of actual possession.

      A finding of either actual or constructive possession will support a conviction

for possession of a firearm by a convicted felon; however, actual possession is

required in order to sentence a defendant to a mandatory minimum sentence under

the enhancement provision in section 775.087(2)(a)1. Miller v. State, 838 So. 2d

644, 644 (Fla. 1st DCA 2003); Johnson v. State, 855 So. 2d 218, 222 (Fla. 5th DCA

2003); Bundrage v. State, 814 So. 2d 1133, 1135 (Fla. 2d DCA 2002). “Actual

possession means: 1) the object is in the hand of or on the person; or 2) the object is

in a container in the hand of or on the person; or 3) the object is so close as to be

within ready reach and is under the control of the person.” Fla. Std. Jury Instr.

(Crim.) 10.15. “Constructive possession means the object is in a place over which

(defendant) has control, or in which (defendant) has concealed it.” Id.

      The contention that Swain actually possessed the firearm after being dropped

off in Leon County is not supported by the evidence. His ex-girlfriend testified she

removed the gun from the trunk of the car and placed it by the rest of Swain’s

belongings. Swain testified he never touched the gun after being dropped off. No

eyewitness testimony placed the firearm any closer than twenty-five to fifty feet

from him. Two recorded jail phone calls from Swain to his new girlfriend showed




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Swain’s knowledge of the presence of the firearm, but did not sufficiently establish

actual possession.

      While there was sufficient evidence to show constructive possession of the

firearm, we hold that actual possession was not established.        The record lacks

competent, substantial evidence to support Swain held the firearm while in Leon

County, either in his hand or in a bag. Further, a firearm cannot be said to be “within

ready reach” when it was seen no closer than twenty-five to fifty feet away from

Swain. Consequently, Swain must be re-sentenced in Count 2 without application of

the sentencing enhancement provision in section 775.087(2)(a)1., Florida Statutes

(2016).

      REVERSED and REMANDED to vacate the judgment and sentence in Count

1 and for re-sentencing in Count 2 without application of the sentencing

enhancement provision in section 775.087(2)(a)1.

ROBERTS, WINOKUR, and M.K. THOMAS, JJ., CONCUR.




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