Coley v. State, 2D01-3809.
| Decision Date | 05 December 2001 |
| Docket Number | No. 2D01-3809.,2D01-3809. |
| Parties | Terrance COLEY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Terrance Coley challenges the order of the trial court summarily denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm in part, reverse in part, and remand for further proceedings.
According to the trial court's order, Coley pleaded to four counts of kidnapping and three counts of armed robbery with a firearm or deadly weapon.1 The written sentences indicate that on the robbery convictions the trial court imposed concurrent three-year minimum mandatory sentences for possession of a firearm pursuant to section 775.087(2), Florida Statutes (1997). Coley alleged that counsel was ineffective for advising him to plead to the kidnapping counts when he was innocent of those charges and no factual basis was established.2 Coley has presented a facially sufficient claim. See Benavidez v. State, 749 So.2d 528 (Fla. 2d DCA 1999). The trial court denied this claim, finding that it was refuted by the transcript of the plea hearing. However, at the plea hearing, in providing the factual basis for the offenses to the trial court, the State indicated only that Coley had admitted to using a pellet gun to rob the store. We therefore reverse the denial of this claim. If the trial court again denies the claim without an evidentiary hearing, it shall attach to its order those portions of the record that conclusively refute the claim.
Coley also alleged that there was no factual basis to support the imposition of the minimum mandatory terms for possession of a firearm, because he carried a BB pellet gun and a BB gun does not constitute a firearm. This is a cognizable 3.850 claim. See State v. Mancino, 705 So.2d 1379 (Fla.1998). The trial court denied the claim, finding that a BB gun does qualify as a firearm for the imposition of the three-year minimum mandatory. In support of its finding, the trial court cited to Mitchell v. State, 698 So.2d 555 (Fla. 2d DCA 1997). However, Mitchell explicitly holds that a BB gun does not fit the definition of a firearm. Thus, the possession of a BB gun by a defendant cannot support the imposition of the three-year minimum mandatory pursuant to section 775.087(2). We reverse the denial of this claim and remand for further proceedings. If the trial court again denies the claim, it shall provide those record attachments that...
To continue reading
Request your trial
-
Agenor v. State
...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) (" Mitchell explicitly holds that a BB gun does not fit the definition of a firearm."). Thus, none of the charges suppo......
-
SKELLIE v. State
...to either attach documents refuting the claim of ineffective assistance of counsel, or hold an evidentiary hearing. Cf. Coley v. State, 801 So.2d 205 (Fla. 2d DCA 2001). REVERSED and SAWAYA, C.J., and PLEUS, J., concur. 1. Skellie entered his plea on 21 June 2000, whereas the final Delgado ......
-
Cesar v. State , 4D11–928.
...1st DCA 2011). A toy gun does not fit within the definition of firearm under the 10–20–life statute. See, e.g., Coley v. State, 801 So.2d 205, 206–07 (Fla. 2d DCA 2001) (holding that a BB gun is not a firearm under the 10–20–life statute). Thus, the sentencing enhancement must be vacated. A......
-
Ryan v. Roy
... ... Under section 768.28(9)(a), Florida Statutes (1999), employees of the state or its subdivisions are immune from tort liability for conduct within the scope of employment ... ...