Cruz v. State

IN THE SECOND DISTRICT COURT OF APPEAL, LAKELAND, FLORIDA
June 29, 2016
RICHARD DELGADO CRUZ, )
DOC #R04272, )
)
Petitioner, )
)
v. ) Case No. 2D15-3142
)
STATE OF FLORIDA, )
)
Respondent. )
)
Upon consideration of the Petitioner's motion for rehearing filed April 28,
2016, it is
ORDERED that the Petitioner's motion for rehearing is granted to the
extent that this court's opinion dated April 15, 2016, is hereby withdrawn, and the
attached opinion is substituted therefor. The only change is in the first and last
paragraphs and the footnote of the substituted opinion. In all other respects, the motion
is denied. No further motions for rehearing will be entertained.
I HEREBY CERTIFY THE FOREGOING IS A
TRUE COPY OF THE ORIGINAL COURT ORDER.
MARY ELIZABETH KUENZEL, CLERK
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
RICHARD DELGADO CRUZ, )
DOC #R04272, )
)
Petitioner, )
)
v. ) Case No. 2D15-3142
)
STATE OF FLORIDA, )
)
Respondent. )
)
Opinion filed June 29, 2016.
Petition Alleging Ineffective Assistance
of Appellate Counsel. Polk County;
Roger A. Alcott, Judge.
Richard Delgado Cruz, pro se.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Susan M. Shanahan,
Assistant Attorney General, Tampa, for
Respondent.
PER CURIAM.
Richard Delgado Cruz has filed a petition and a supplemental petition
under Florida Rule of Appellate Procedure 9.141(d) raising four claims of ineffective
assistance of appellate counsel. We find merit only in his claim in ground one of his
original petition that appellate counsel was ineffective for failing to file a motion to
correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2).
See Fortner v. State, 23 So. 3d 1275, 1276 (Fla. 2d DCA 2010) (stating that a claim that
appellate counsel was ineffective for failing to file a rule 3.800(b)(2) motion to correct a
sentence that is not authorized by law is cognizable in a petition filed under rule
9.141(d)). The State acknowledges that under this court's case law, Cruz is entitled to
be resentenced as he argues in ground one. We grant ground one of Cruz's petition but
deny the remaining claims of his supplemental petition.1
A jury convicted Cruz of burglary of a dwelling while in actual possession
of a firearm, robbery with a firearm while in actual possession of a firearm, three counts
of kidnapping, and three counts of sexual battery while in actual possession of a
firearm. The trial court sentenced Cruz to life imprisonment on each count, all terms to
run consecutively. In addition, it imposed ten-year mandatory minimum terms on the
counts in which Cruz was found to have been in actual possession of a firearm. See §
775.087(2)(a)(1), Fla. Stat. (2012) (providing for the imposition of a ten-year mandatory
minimum term of imprisonment when a defendant is convicted of an enumerated felony
and actually possessed a firearm during the commission of the offense).
In his petition, Cruz argues that appellate counsel was ineffective for
failing to file a motion under rule 3.800(b)(2) on the basis that his consecutive
mandatory minimum terms are illegal because all of the offenses were committed during
a single episode and he did not fire the gun. See Irizarry v. State, 946 So. 2d 555, 558
(Fla. 5th DCA 2006) (holding that consecutive mandatory minimum sentences were not
authorized when each offense arose from a single criminal episode during which Irizarry
did not fire his gun or injure multiple victims or cause multiple injuries to any one victim).
1
In his reply to the State's response, Cruz abandoned the second claim he
raised in his original petition.
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As the State acknowledges, this court has stated its agreement with Irizarry in Church v.
State, 967 So. 2d 1073, 1075 (Fla. 2d DCA 2007) (agreeing with Irizarry and holding
that the trial court did not have authority to impose consecutive mandatory minimum
sentences for three counts of armed robbery with a firearm committed during a single
criminal episode of robbery at a credit union during which Church displayed a firearm to
three tellers but did not fire it); see also Denizard v. State, 79 So. 3d 159, 161 (Fla. 2d
DCA 2012) (reversing consecutive ten-year mandatory minimum terms based on
Church where defendant pointed his gun at both victims during a robbery but never fired
it). We note that the supreme court has recently reiterated that "controlling precedent
establishes . . . [that] consecutive sentencing of mandatory minimum imprisonment
terms for multiple firearm offenses is impermissible if the offenses arose from the same
criminal episode and a firearm was merely possessed but not discharged." Williams v.
State, 186 So. 3d 989, 993 (Fla. 2016).
Because Cruz's consecutive mandatory minimum sentences are illegal,
appellate counsel was ineffective for failing to file a rule 3.800(b)(2) motion to correct
sentencing error. If appellate counsel had given the trial court the opportunity to correct
the sentencing error and the court failed to do so, the issue would have been preserved
for review. This court would have then been compelled to reverse the portion of the
sentencing order that imposes consecutive mandatory minimum terms and remand for
the trial court to impose the terms concurrently. Accordingly, because a new appeal
would be redundant, we reverse Cruz's sentences for burglary of a dwelling while in
actual possession of a firearm, robbery with a firearm while in actual possession of a
-3-
firearm, and three counts of sexual battery while in actual possession of a firearm and
remand for resentencing in accordance with this opinion.
Petition granted in part and denied in part.
WALLACE, SLEET, and BADALAMENTI, JJ., Concur.
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