Bienaime v. State

• Citation: 213 So.3d 927
• Decision Date: 08 March 2017
• Docket Number: No. 4D15–163,4D15–163
• Parties: Amos BIENAIME, Appellant, v. STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

213 So.3d 927

Amos BIENAIME, Appellant,

v.STATE of Florida, Appellee.

No. 4D15–163

District Court of Appeal of Florida, Fourth District.

[March 8, 2017]

Jonathan R. Kaplan of Jonathan R. Kaplan, LLC, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Cynthia L. Comras, Assistant Attorney General, West Palm Beach, for appellee.

Gerber, J.

The defendant appeals from his convictions on Count 1, first degree murder with a firearm, and Count 2, burglary of an occupied dwelling while armed with a firearm. The defendant also appeals from his sentence on Count 2, a mandatory minimum twenty-five years in prison under section 775.087(2)(a), Florida Statutes (2013) (known as the 10–20–Life statute), on the ground that the indictment's Count 2 failed to allege the defendant discharged a firearm causing death or great bodily harm.

We affirm without further discussion the defendant's convictions on both counts. However, on the defendant's appeal from his sentence on Count 2, the state properly concedes error. We write to explain the error.

The indictment's Count 1 alleged, in pertinent part, that during the commission of first degree murder, "[the defendant] discharged a firearm or destructive device as defined in section 790.001, Florida Statutes, and, as a result of the discharge, death or great bodily harm was inflicted upon [the victim]...." However, this phrase was missing from the indictment's Count 2, which alleged, in pertinent part:

[The defendant] ... did knowingly enter or remain in a structure which is a dwelling, the property of [the victim], in which there was a human being at the time [the defendant] entered or remained in the dwelling, with intent to commit an offense therein, and was or became armed within the dwelling, with an explosive or dangerous weapon, and during the commission or attempt to commit any offense listed in Florida Statute 775.087(2)(a) 1, [the defendant] actually possessed a firearm or destructive device as those terms are defined in section 790.001, Florida Statutes contrary to Florida Statutes 775.087(2)(a) 1, 810.02(1), (2)(b) and (3). (1 DEG FEL, PBL).

Despite Count 2's absence of the phrase alleging a firearm's discharge causing death or great bodily harm, the verdict form's section pertaining to Count 2 contained interrogatories regarding discharge and death or great bodily harm. The jury specifically found that the defendant, while committing burglary of an occupied dwelling, possessed a firearm, discharged a firearm, and caused great bodily harm to the victim.

Based on the jury's findings on Count 2, the trial court sentenced the defendant to twenty-five years as a minimum mandatory sentence under the 10–20–Life statute, which states, in pertinent part:

Any person who is convicted of a felony or an attempt to commit a felony listed in sub-subparagraphs (a)1.a.-q., regardless of whether the use of a weapon is an element of the felony, and during the course of the commission of the felony such person discharged a "firearm" or "destructive device" as defined in s. 790.001 and, as the result of the discharge, death or great bodily harm was inflicted upon any person, the convicted person shall be sentenced to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison.

§ 775.087(2)(a) 3., Fla. Stat. (2013).

The defendant failed to timely object to this sentence. However, after filing this appeal, the defendant filed a motion to correct sentencing error. The motion argued that the trial court could not sentence the defendant to the minimum mandatory twenty-five years in prison under the 10–20–Life statute because the indictment's Count 2 failed to allege he discharged a firearm causing death or great bodily harm. Because the trial court did not enter an order on the motion within 60 days, the motion was deemed denied under Florida Rule of Criminal Procedure 3.800(b)(2)(B).

This appeal followed. Our review is de novo. See , e.g. , Flowers v. State , 899 So.2d 1257, 1259 (Fla. 4th DCA 2005) ("The legality of a sentence is a question of law and is subject to de novo review.").

To pursue an enhanced mandatory sentence as the 10–20–Life statute proscribes, the...