NICKALIST MARES LANG v. STATE OF FLORIDA

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IN THE DISTRICT COURT OF APPEAL FIRST DISTRICT, STATE OF FLORIDA NICKALIST MARES LANG, Appellant, v. NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED CASE NO. 1D05-3697 STATE OF FLORIDA, Appellee. ___________________________/ Opinion filed November 8, 2006. An appeal from the Circuit Court for Jackson County. Hentz McClellan, Judge. Nancy A. Daniels, Public Defender, and John B. Kelly, III, Assistant Public Defender, Tallahassee, for Appellant. Charlie Crist, Attorney General, and Felicia A. Wilcox, Assistant Attorney General, Tallahassee, for Appellee. PER CURIAM. Appellant s conviction for possession of a firearm by convicted felon and the overall sentence imposed are affirmed. However, because appellant was not charged with or proven to have been in actual possession of the firearm - - as required by section 775.087(4), Florida Statutes (2005) - - we reverse the three-year mandatory minimum sentence imposed pursuant to that statute, and remand with directions to strike that portion of the sentence. See Cook v. State, 816 So. 2d 267 (Fla. 1st DCA 2002). Appellant need not be present for resentencing. See Irons v. State, 851 So. 2d 798 (Fla. 2d DCA 2004). AFFIRMED IN PART; REVERSED IN PART; and REMANDED, with directions. BROWNING, C.J., DAVIS, and LEWIS, JJ., CONCUR. 2

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