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Birch v. State

Florida Court of Appeals, First District

May 25, 2018

Kishon Larhame Birch, Appellant,
v.
State of Florida, Appellee.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          On appeal from the Circuit Court for Duval County. Marianne L. Aho, Judge.

          Andy Thomas, Public Defender; Maria Ines Suber, Assistant Public Defender, Tallahassee, for Appellant.

          Pamela Jo Bondi, Attorney General; Angela R. Hensel and Quentin Humphrey, Assistant Attorneys General, Tallahassee, for Appellee.

          KELSEY, J.

         On appeal from his conviction for possession of a firearm by a convicted felon, Appellant raises four issues, all of which we reject. We affirm Appellant's conviction and sentence, and write to address two of his arguments: (I) that the charging language was constitutionally defective and precluded the state from pursuing a theory of constructive possession, and (II) that the evidence was insufficient to support a finding of constructive possession.

         I. The Charging Language.

         A. The Information, Verdict Form, and Instructions.

         The state charged Appellant by information with both second-degree murder and possession of a firearm by a convicted felon. Both counts of the information charged that Appellant "actually possessed" a firearm-language required to invoke the 10-20-Life sentence enhancement. § 775.087(2)(a)1., Fla. Stat. (2012) (requiring that the accused "actually possessed a 'firearm' or 'destructive device'"); Arnett v. State, 128 So.3d 87, 87-88 (Fla. 1st DCA 2013) ("In order to enhance a defendant's sentence under section 775.087(2), the grounds for enhancement must be clearly charged in the information."). The information caption and the charge for felon in possession provided as follows:

INFORMATION FOR:
1) MURDER IN THE SECOND DEGREE
2) POSSESSION OF A FIREARM BY A CONVICTED FELON
. . .
COUNT 2
KISHON LARHAME BIRCH on May 16, 2012, in the County of Duval and the State of Florida, did actually possess a firearm, to-wit, a handgun, having been convicted of a felony in the courts of the State of Florida, to-wit: Armed Robbery, in the Circuit Court, in and for the Fourth Judicial Circuit of Florida, on December 11, 2003, contrary to the provisions of Sections 790.23(1)(a) [felon in possession] and 775.087(2)(a)(1) [10-20-Life], Florida Statutes.

         The verdict form for felon in possession started with "We, the jury, find the defendant guilty of Possession of a Firearm by a Convicted Felon, as charged in the information." The "as charged" phrase fuels Appellant's first argument: that the state was limited to pursuing actual possession because the ...


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