MARK AGENOR v. STATE OF FLORIDA , 268 So. 3d 868 ( 2019 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
MARK AGENOR, DOC #H50722, )
)
Appellant, )
)
v. ) Case No. 2D17-3759
)
STATE OF FLORIDA, )
)
Appellee. )
________________________________ )
Opinion filed March 27, 2019.
Appeal from the Circuit Court for Polk
County; James A. Yancey, Judge.
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.
ROTHSTEIN-YOUAKIM, Judge.
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 (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
1The State only generally cited the applicable statutes and did not identify
the subsections on which it relied.
2The
burglary statute uses the term "dangerous weapon," not "deadly
weapon." See generally § 810.02.
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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) ("In the context of plea deals, 'the State is free to seek
judicial sentence enhancements so long as the defendant either stipulates to the
relevant facts or consents to judicial factfinding.' " (quoting Blakely v. Washington, 542
U.S. 296, 310 (2004))).
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) ("The jury
could have found that an assault occurred and that the pistol or object used constituted
a deadly weapon but that the State failed to prove beyond a reasonable doubt that the
pistol met the statutory definition of a 'firearm.' "). 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 [S]tate also cannot rely on grounds alleged in one
count to support an enhanced mandatory sentence on another count. Finally, if the
[S]tate wishes to give notice of an enhancement by reference to a statute in the
charging document, the [S]tate must refer to the specific subsection which subjects the
3And,in fact, a defendant who possesses a firearm or destructive device
during the commission of a burglary of a conveyance is subject to a three-year, not a
ten-year, mandatory minimum sentence. See § 775.087(2)(a)(1).
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defendant to the enhanced sentence." (citation omitted) (first citing Bryant v. State, 744
So. 2d 1225, 1226 (Fla. 4th DCA 1999); then citing Inmon v. State, 932 So. 2d 518, 520
(Fla. 4th DCA 2006))).
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) ("Mitchell
explicitly holds that a BB gun does not fit the definition of a firearm."). 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) (rejecting Ibarra's challenge to the
firearm mandatory minimum based on his assertion that his offense had involved only a
4We have recognized that "deadly" and "dangerous" are used
interchangeably in this context. See Mitchell v. State, 698 So. 2d 555, 560 & n.6 (Fla.
2d DCA 1997).
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BB gun because, among other things, "[t]he plea form that appellant signed advised him
that his plea would subject him to a ten-year mandatory minimum sentence"). 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. ("The trial court advised appellant
during the plea colloquy that he would receive a ten-year mandatory minimum if the
court declined to sentence him as a youthful offender. Appellant did not object to the
factual basis recited by the State which alleged that appellant wielded a 'firearm' during
the offense."); Bradley v. State, 971 So. 2d 957, 959 (Fla. 5th DCA 2007) (rejecting
Bradley's challenge to the firearm mandatory minimum because he had "stipulat[ed] to
the facts alleged in the complaint affidavit (which stated that he had discharged a
firearm during the commission of the robbery)" when entering his plea), approved, 3 So.
3d 1168 (Fla. 2009). Moreover, we note that at the sentencing hearing, the parties and
the court were all in accord that the offenses had involved only BB guns, not firearms.
Accordingly, we affirm the judgments of conviction on all ten offenses and
affirm four of Agenor's sentences, but we reverse the six sentences discussed herein to
the extent that we remand for the trial court to strike the ten-year mandatory minimum
terms of imprisonment on those six sentences.
Affirmed in part; reversed in part; remanded.
NORTHCUTT and VILLANTI, JJ., Concur.
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