FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Seminole County, Debra S. Nelson,
Jo Bondi, Attorney General, Tallahassee, and Andrea K. Totten
and Wesley Heidt, Assistant Attorneys General, Daytona Beach,
S. Purdy, Public Defender, and Matthew Funderburk, Assistant
Public Defender, Daytona Beach, for Appellee/Cross-Appellant.
State appeals the trial court's order dismissing one
count of an information that charged Richard William Joy, III
with possession of a firearm by a convicted felon and
trafficking in cocaine while armed with a firearm, stemming
from the same incident but severed for trial. The trial court
ruled that collateral estoppel barred the State from
prosecuting the felon-in-possession count because, while the
jury found Joy guilty of armed trafficking, it found that he
did not "actually possess a firearm." We reverse.
Bradley Tollas of the Longwood Police Department was pursuing
a Cadillac that was the subject of a police investigation and
saw it crash with an unmarked police car. After the crash,
the Cadillac's driver ran from the scene. Joy, the
passenger, was unable to run and remained outside the car.
Inside the Cadillac, Detective Tollas found a loaded handgun
on the passenger-side floor, where Joy's feet would have
been, and cocaine in the center console. Joy was taken into
custody and subsequently charged with trafficking in cocaine
while armed with a firearm and possession of a firearm by a
trial court severed the charges and Joy proceeded to trial on
the trafficking charge. The jury found Joy guilty of
trafficking in cocaine and determined that he
"individually carried" a weapon but did not
"actually possess" a firearm during the commission
of the offense, pursuant to section 775.087(1) and (2),
Florida Statutes (2014). Based on the jury's finding that
he did not actually possess a firearm during the commission
of the trafficking offense, Joy moved to dismiss the
felon-in-possession count of the information, claiming that
the doctrine of collateral estoppel barred further
prosecution. The trial court agreed and dismissed the
felon-in-possession count. This was error.
courts review orders granting motions to dismiss de novo.
State v. Walthour, 876 So.2d 594, 595 (Fla. 5th DCA
2004). On a motion to dismiss based on collateral estoppel,
the trial court must determine whether "a rational jury
could have grounded its verdict upon an issue other than that
which the defendant seeks to foreclose." Davis v.
State, 645 So.2d 66, 67 (Fla. 4th DCA 1994). The
doctrine of collateral estoppel "means simply that when
an issue of ultimate fact has once been determined by a valid
and final judgment, that issue cannot again be litigated
between the same parties in any future lawsuit."
Ashe v. Swenson, 397 U.S. 436, 443 (1970). For
collateral estoppel to apply, the issue "sought to be
foreclosed must necessarily have been determined in
the defendant's favor; it is not sufficient that the fact
might have been determined in the first trial."
State v. Short, 513 So.2d 679, 681 (Fla. 2d DCA
1987) (emphasis added); see also Gragg v. State, 429
So.2d 1204, 1206 (Fla. 1983) (holding that pertinent question
when dealing with claim of collateral estoppel is whether
factual issue was actually decided by prior jury in reaching
its verdict); State v. Strong, 593 So.2d 1065, 1067
(Fla. 4th DCA 1992) (holding collateral estoppel may bar
subsequent prosecution of fact "necessarily
established" in prior trial, which is defined as one
resolved in favor of defendant in prior trial and essential
to that prior conviction). The defendant has "the burden
to prove by convincing, competent evidence" that this
standard is met. Davis, 645 So.2d at 67. Here, Joy
has failed to satisfy that burden. While the jury found that
Joy did not "actually possess" a firearm during the
course of the trafficking offense, we cannot say that the
jury's findings "necessarily established" the
issue of possession for the felon-in-possession offense
because the jury found that Joy "carried" the
775.087(1) allows for reclassification of an offense if the
defendant carries any weapon or firearm during the commission
of the felony. As the jury was instructed, "carry"
is defined under this statute as either actual physical
possession of a firearm or having the firearm readily
available. Williams v. State, 531 So.2d 1033, 1033
(Fla. 3d DCA 1988); Menendez v. State, 521 So.2d
210, 212 (Fla. 1st DCA 1988); see James v. State, 16
So.3d 322, 326 n.2 (Fla. 4th DCA 2009) (noting that
definition of "carry" is narrower than
"possess" because possession can be actual or
constructive). Section 775.087(2)(a)1. further "enhances
the sentence of a defendant who 'actually possessed'
a firearm during the commission of the crime."
Bundrage v. State, 814 So.2d 1133, 1134 (Fla. 2d DCA
2002). In order for the firearm enhancement to apply, the
State must prove actual possession, which, as the jury was
instructed, is defined as either 1) the firearm was
carried on the defendant's person or 2) the
firearm was within immediate reach of the defendant with
ready access to it and the defendant had the intent to use it
during the commission of the crime. § 775.087(4), Fla.
Stat. (2014); Fla. Std. Jury Instr. (Crim.) 3.3(d). Thus, in
finding that Joy "carried" but did not
"actually possess" a firearm, the jury in the
trafficking trial must have concluded that while the firearm
was readily available or within Joy's immediate reach,
Joy neither had the firearm on his person nor had ready
access to it with the intent to use it during the trafficking
offense. As such, the jury did not necessarily determine that
Joy did not "possess" a firearm to dismiss the
severed felon-in-possession charge.
790.23(1), Florida Statutes (2014), makes it a second-degree
felony for a convicted felon to own a firearm or to have one
in his care, custody, possession, or control. Under this
statute, possession means "to have personal charge of or
exercise the right of ownership, management, or control over
an object, " and can be actual or constructive. Fla.
Std. Jury Instr. (Crim.) 10.15; see generally Daniels v.
State, 718 So.2d 1274, 1275 (Fla. 2d DCA 1998)
(explaining that state must prove either constructive or
actual possession to establish violation of section 790.23).
Specifically, under section 790.23, "actual
possession" requires only that the firearm is "so
close as to be within ready reach and is under the control of
the person, " and does not require that it be carried on
the person or with an intent to use it during the commission
of any other crime. Fla. Std. Jury Instr. (Crim.) 10.15.
"possession" is defined differently in the jury
instructions for violations of sections 775.087 and 790.23,
the jury did not necessarily determine the issue of
possession under section 790.23 in Joy's favor. The State
is not barred from prosecuting the felon-in-possession
charge. We reverse the trial court's dismissal of the
felon-in-possession charge, and remand for a trial on this
and REMANDED for ...