Agenor v. State
Decision Date | 27 March 2019 |
Docket Number | Case No. 2D17-3759 |
Parties | Mark AGENOR, DOC #H50722, Appellant, v. STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Howard L. Dimmig, II, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.
Mark Agenor appeals the judgments and sentences entered following his nolo contendere pleas to ten charges in three different circuit court cases. Following independent review of the record pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), we ordered supplemental briefing addressing whether the trial court erred in imposing on six of those sentences a mandatory minimum term of ten years' imprisonment pursuant to section 775.087(2)(a)(1), Florida Statutes (2015), for possessing a firearm or destructive device. With the benefit of that briefing, we now reverse the mandatory minimum provisions on those six sentences.
In pertinent part, the State charged Agenor with three counts of robbery with a deadly weapon, see § 812.13, Fla. Stat. (2015) ;1 one count of attempted robbery with a deadly weapon, see §§ 812.13, 777.04, Fla. Stat. (2015) ; one count of burglary of a conveyance with "an air pistol or BB gun, a dangerous weapon or explosive," see § 810.02, Fla. Stat. (2015) ; and one count of attempted burglary of a conveyance "with a deadly weapon,"2 see §§ 810.02, 775.087, 777.04, Fla. Stat. (2015). Agenor pleaded nolo contendere to those charges and to four other charges pursuant to a plea agreement, but the parties did not agree to a particular sentence. At sentencing, the trial court imposed ten-year mandatory minimum terms of imprisonment on the six counts specified above pursuant to section 775.087(2)(a)(1), the "10/20/life" statute.
As the State appropriately concedes, this was error. To pursue an enhanced mandatory minimum sentence under the 10/20/life statute, "the [S]tate must allege the grounds for enhancement in the charging document, and the jury must make factual findings regarding those grounds." Bienaime v. State, 213 So.3d 927, 929 (Fla. 4th DCA 2017) (citing Lane v. State, 996 So.2d 226, 227 (Fla. 4th DCA 2008) ). A ten-year mandatory minimum sentence under that statute, therefore, requires that the State plead and prove beyond a reasonable doubt—or, in the case of a guilty or nolo contendere plea, that the defendant stipulate—that the defendant actually possessed a " ‘firearm’ or ‘destructive device.’ " § 775.087(2)(a)(1) ; see Murray v. State, 133 So.3d 557, 558 (Fla. 1st DCA 2014) .
The State, however, did not allege a firearm in connection with any of the charges: it alleged a "deadly weapon" or "dangerous weapon," and although a firearm may qualify as a deadly or dangerous weapon, not all deadly or dangerous weapons are firearms. Cf. Reeder v. State, 399 So.2d 445, 446 (Fla. 5th DCA 1981) (). In addition, although the attempted-burglary-of-a-conveyance charge generally cited section 775.087, that general citation was insufficient to notify Agenor of the potential applicability of section 775.087(2)(a)'s ten-year mandatory minimum sentence to that charge or to any other charge.3 See Bienaime, 213 So.3d at 929-30 ( .
The only specific allegation of a weapon was included in the charge of burglary of a conveyance with a dangerous weapon or explosive, and the weapon alleged was "an air pistol or BB gun." There is no question that a BB gun can qualify as a deadly or dangerous weapon4 supporting felony reclassification under section 775.087(1). See, e.g., Dale v. State, 703 So.2d 1045, 1046-47 (Fla. 1997) ; Mitchell v. State, 698 So.2d 555, 558 (Fla. 2d DCA), approved, 703 So.2d 1062 (Fla. 1997) ; Santiago v. State, 900 So.2d 710, 711 (Fla. 3d DCA 2005). But a BB gun cannot qualify as a "firearm" for purposes of imposing a mandatory minimum sentence under the 10/20/life statute.
Coley v. State, 801 So.2d 205, 206 (Fla. 2d DCA 2001) ( ). Thus, none of the charges supported the trial court's imposition of ten-year mandatory minimum sentences.
Moreover, as part of his nolo contendere pleas, Agenor did not stipulate either to his possession of a firearm or to the applicability of the 10/20/life statute. Agenor's plea form included no factual basis for the pleas, and the provision acknowledging the possibility of sentencing "as 10/20/L" is not checked off. Cf. Ibarra v. State, 45 So.3d 911, 912 (Fla. 4th DCA 2010) ( ). At the plea hearing, the court recited the charges consistently with the charges set forth in the charging documents, which did not allege a "firearm"; did not inform Agenor of any potential mandatory minimum sentence; and requested neither that the State proffer nor that Agenor stipulate to any factual basis for the pleas, let alone a factual basis establishing Agenor's possession of a firearm. Cf. id. (...
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...for enhancement in the charging document, and the jury must make factual findings regarding those grounds.’ " Agenor v. State, 268 So. 3d 868, 870 (Fla. 2d DCA 2019) (alteration in original) (quoting Bienaime, 213 So. 3d at 929 ). This conclusion is rooted in the courts' discernment of legi......