PALANSKI SWAIN,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

IN THE DISTRICT COURT OF APPEAL

FIRST DISTRICT, STATE OF FLORIDA

NOT FINAL UNTIL TIME EXPIRES TO 

FILE MOTION FOR REHEARING AND 

DISPOSITION THEREOF IF FILED

CASE NO. 1D15-3780

_____________________________/

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 
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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.