final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Duval County. Marianne L.
Thomas, Public Defender; Maria Ines Suber, Assistant Public
Defender, Tallahassee, for Appellant.
Jo Bondi, Attorney General; Angela R. Hensel and Quentin
Humphrey, Assistant Attorneys General, Tallahassee, for
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.
The Charging Language.
The Information, Verdict Form, and
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:
1) MURDER IN THE SECOND DEGREE
2) POSSESSION OF A FIREARM BY A CONVICTED FELON
. . .
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.
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 ...