STATE OF FLORIDA v. I.J., A CHILD

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
STATE OF FLORIDA,
Appellant,
v.
I.J., a child,
Appellee.
No. 4D17-2982
[November 7, 2018]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Carlos S. Rebollo, Judge; L.T. Case No. 17-001314-DLB.
Pamela Jo Bondi, Attorney General, Tallahassee, and Alexandra A.
Folley, Assistant Attorney General, West Palm Beach, for appellant.
Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant
Public Defender, West Palm Beach, for appellee.
CONNER, J.
The State of Florida appeals the trial court’s delinquency disposition
asserting the trial court erred by failing to commit I.J. to a mandatory
fifteen days in secure detention for the offense of armed burglary of a
conveyance. 1 We agree that the fifteen days’ detention was a mandatory
enhancement for disposition under the facts of this case, and therefore,
we reverse and remand the disposition of that charge.
Background
A witness reported that she saw four males attempting to open car door
handles in a parking lot. Officers responded, set up a perimeter, and I.J.
was apprehended and placed under arrest. While detaining I.J., the
officers learned that a handgun had been taken from one of the vehicles
burglarized by the four suspects. I.J. told the officers that he knew where
the missing handgun was located and took the officers to the location
1The State does not appeal the dispositions of the other charges to which I.J.
pled.
where the handgun was found.
One of the other suspects, the co-defendant, told officers that a third
suspect (not I.J.) handed him the gun, so he hid the gun in the bush where
it was found. The co-defendant “did not say who removed the gun from
the vehicle.”
I.J. was charged with armed burglary of a conveyance, grand theft of a
firearm, burglary of a conveyance, and resisting without violence. He
entered a plea to all four counts. At the plea hearing, the State mentioned
that “given that [this] is a firearm case, it was explained at staffing that
this would require 15-day mandatory detention” pursuant to section
790.22(9)(a), Florida Statutes (2017). I.J.’s counsel stated that he “never
possessed a gun personally,” so it was “kind of difficult to comprehend”
that he would face the enhancement. The trial court agreed to reset the
case, so that both parties could further research the issue.
When the disposition hearing commenced, the State relied on and cited
to a case from the Third District, State v. R.C.S., 837 So. 2d 517 (Fla. 3d
DCA 2003), arguing that the case held that the juvenile defendant did not
have to personally use or possess a firearm for the enhancement statute
to apply. In opposition, I.J. relied on our decision in B.O. v. State, 25 So.
3d 586 (Fla. 4th DCA 2009), contending B.O. requires actual possession
to impose the detention penalty. The trial court agreed with I.J., and
declined to impose the fifteen days in secure detention requested by the
State. The State gave notice of appeal.
Appellate Analysis
“The legality of a sentence is a question of law and is subject to de novo
review.” Flowers v. State, 899 So. 2d 1257, 1259 (Fla. 4th DCA 2005). “We
also review de novo a trial court’s interpretation of a statute.” State v.
Sanchez, 133 So. 3d 1038, 1040 (Fla. 4th DCA 2014).
The only issue on appeal is whether the trial court erred in failing to
impose fifteen days in secure detention as part of the disposition of I.J.’s
armed burglary of a conveyance charge, pursuant to section 790.22(9)(a).
Section 790.22(9)(a) states:
(9) Notwithstanding s. 985.245, if the minor is found to have
committed an offense that involves the use or possession of a
firearm, as defined in s. 790.001, other than a violation of
subsection (3), or an offense during the commission of which
the minor possessed a firearm, and the minor is not
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committed to a residential commitment program of the
Department of Juvenile Justice, in addition to any other
punishment provided by law, the court shall order:
(a) For a first offense, that the minor shall serve a minimum
period of detention of 15 days in a secure detention facility; and
1. Perform 100 hours of community service; and may
2. Be placed on community control or in a nonresidential
commitment program.
§ 790.22(9)(a), Fla. Stat. (2017) (emphases added). The question raised in
this case is whether the statute requires that the minor actually use or
possess a firearm in order for the enhancement to apply. We agree with
the Third District and hold that it does not.
The parties and the trial court relied on two cases, one from the Third
District, and one from this Court. In the case from the Third District,
R.C.S., a juvenile entered a no contest plea to armed burglary with a
firearm and theft of a firearm. R.C.S., 837 So. 2d at 517. At the disposition
hearing, the juvenile claimed that he was only the lookout during the
incident, and therefore, the provisions of section 790.22(9)(a) did not apply
to him. Id. The trial court agreed, and did not sentence the juvenile to the
mandatory fifteen-day detention period. Id. at 517-18. On appeal, in a
short opinion, the court stated:
We are of the view that the legislature purposely intended the
mandatory minimum detention provision of that section to act
as an example of what might lie ahead should one persist in
further criminal activity. We reject the juvenile’s argument
that we should analogize section 790.22(9), with section
775.087(1), Florida Statutes (1999). Moreover, we do not think
there is any ambiguity present because the subsection at
issue expressly provides for such penalty for the “use” of a
firearm. Here, even though the juvenile acted only as a
lookout, he was involved in a crime which involved the use of
a weapon. This was sufficient to mandate the minimum fifteen
day detention at issue. Accordingly, we reverse the order
under review and remand for additional sentencing.
Id. at 518 (footnote omitted).
In the case from our Court, B.O., an unarmed juvenile, took two
handguns from a home, and was charged with two counts of grand theft
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of a firearm. B.O., 25 So. 3d at 587. He pled guilty to the two crimes, and
on appeal, challenged the fifteen-day secure detention sentence he
received pursuant to section 790.22(9)(a). Id. This Court cited to principles
of due process, and phrased the analysis as:
The statute does not specify that it applies when the subject
of the theft is a firearm. Rather its express term is use or
possession of a firearm in the commission of an offense. The
question presented in this case is therefore whether the
statute applies when the petition neither cited the statute nor
alleged that, in committing the theft, the child used or
possessed a firearm.
Id. at 587-88. Citing to several cases, this Court explained that “[s]tate
law now recognizes a broadly applicable Constitutional rule about
punishment: the accused must be given notice in the charging document
of any fact on which a sentencing enhancement will be based.” Id. at 589.
[T]he charging document serves an important purpose beyond
merely alleging the elements of the crime charged. These cases
hold that the charging document must also support the
sentence imposed after a finding of guilt. Hence it is irrelevant
to the disposition issue that the petition in this case charged
all the elements of grand theft. The present issue involves the
penalty that may be properly inflicted for the crime actually
charged in the petition: the standard penalty or an enhanced
penalty depending on facts in addition to the crime’s raw
elements that were not alleged.
Id. (emphasis added). Therefore, our holding in B.O. was based on due
process concerns, and not on the possession requirements of section
790.22(9)(a).
There are two reasons that the sentence in this case must be reversed:
(1) the statute requires the fifteen-day mandatory secure detention
sentence; and (2) the notice requirements that we found lacking in B.O.
were satisfied in this case.
“In construing the meaning of a statute, we first look at its plain
language.” Montgomery v. State, 897 So. 2d 1282, 1285 (Fla. 2005). “When
the language of the statute is clear and unambiguous and conveys a clear
and definite meaning, there is no occasion for resorting to the rules of
statutory interpretation and construction; the statute must be given its
plain and obvious meaning.” Id. (quoting Holly v. Auld, 450 So. 2d 217,
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219 (Fla. 1984)). Section 790.22(9)(a) is unambiguous, and supports the
State’s interpretation. The statute states that the enhancement is required
when a “minor is found to have committed an offense that involves the use
or possession of a firearm[.]” § 790.22(9)(a), Fla. Stat. The statute does not
require actual use or actual possession, and to the contrary, only requires
conviction of an offense that involves the use or possession of a firearm.
Therefore, the statute does not focus on the specific actions of the
defendant, but instead, the category of the offense.
The determinative offense here is armed burglary. As the State argues,
armed burglary of a conveyance certainly involves the use or possession of
a firearm. See Gaber v. State, 684 So. 2d 189, 191 (Fla. 1996) (“Burglary
becomes armed burglary if, in the course of committing the offense, the
offender ‘[i]s armed, or arms himself within such structure or conveyance,
with explosives or a dangerous weapon.’” (alteration in original) (quoting §
810.02(2)(b), Fla. Stat. (1993))). The offense necessitates that the
defendant is “armed” or “arms himself,” meaning the defendant uses or
possesses an explosive or dangerous weapon. See Armed, BLACK’S LAW
DICTIONARY (10th ed. 2014) (defining “armed” as “[e]quipped with a weapon”
or “[i]nvolving the use of a weapon”). In the instant case, the State
specifically alleged that I.J. and his co-defendant “in the course thereof
HE/THEY were armed or armed HIMSELF/THEMSELVES within such
conveyance with explosives or a dangerous weapon, to-wit: .40 CALIBER
SMITH AND WESSON 6040 HANDGUN . . . .”
As the juvenile did in R.C.S., I.J. here also attempts to analogize section
790.22(9)(a) with the 10-20-Life statute, and cites to cases interpreting
that statute. However, I.J.’s citation to cases interpreting the 10-20-Life
statute actually demonstrates the error of his argument. The two relevant
subsections of section 775.087, Florida Statutes (2017), Florida’s 10-20-
Life statute, expressly state that actual use or possession is required
before enhancement under that statute is mandated. See § 775.087(1),
Fla. Stat. (2017) (“[D]uring the commission of such a felony the defendant
carries, displays, uses, threatens to use, or attempts to use any weapon or
firearm[.]” (emphasis added)); § 775.087(2)(a), Fla. Stat. (2017) (referencing
when a “person actually possessed a ‘firearm’ or ‘destructive device,’”
“possessed a ‘firearm’ or ‘destructive device,’” and “discharged a ‘firearm’
or ‘destructive device’ . . . and, as the result of the discharge, death or great
bodily harm was inflicted upon any person[.]” (emphases added)).
Although the legislature chose to make actual possession a requirement
under the 10-20-Life statute, it did not do the same under section
790.22(9)(a).
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Our interpretation of section 790.22(9)(a) is also consistent with the
intent of juvenile disposition goals. In addressing an Equal Protection
Clause challenge to a previous version of section 790.22(9)(a), the Third
District explained that “the state’s interests in juvenile offenders is vastly
different from its interests in adult offenders.” T.M. v. State, 689 So. 2d
443, 445 (Fla. 3d DCA 1997). “With adult offenders, the state’s primary
objective is that of retributive punishment. One of the primary purposes
of the Juvenile Justice Act, however, is . . . ‘that the most appropriate
control, discipline, punishment and treatment can be administered’ with
‘the specific rehabilitation needs of the child[.]’” Id. (quoting § 39.001(1)(c),
Fla. Stat. (1995)). The court also explained:
The statute is obviously designed to get the immediate
attention of all juveniles and to issue a “wake-up call” that the
state deems their firearm offenses to be serious enough to
warrant the automatic deprivation of their liberty for a period
of time, even on a first offense. Its intent clearly is to have a
deterrent effect to hopefully prevent the juvenile’s escalation
into the adult criminal justice system.
Id. at 446.
As for the notice requirements under B.O., here, the State complied.
The delinquency petition charged both I.J. and the co-defendant with
burglary of a conveyance, stating: “HE/THEY were armed or armed
HIMSELF/THEMSELVES” with a handgun.
In Delgado v. State, 43 So. 3d 132 (Fla. 3d DCA 2010), the defendant
was charged with and convicted of two counts of armed robbery with a
firearm, and sentenced to a minimum mandatory term pursuant to
Florida’s 10-20-Life statute. Id. at 133. On appeal, the defendant argued
that the information charging him did not allege that he possessed a
firearm during the robbery, and therefore, the information was not specific
enough to support application of the minimum mandatory. Id.Like the charging document in this case, the information in Delgado
charged the defendant and co-defendant together under each count,
stating that “said defendant possessed a firearm or destructive device”
during the commission of the offense. Id. at 134. The court found this
language enough to charge both defendants with the possession of the
firearm or destructive device, because:
The phrase, “said defendant,” likewise applies to both
defendants since, under Florida law, the singular form of a
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phrase includes the plural form. In this case, the phrase, “said
defendant,” includes the phrase, “said defendants.” § 1.01,
Fla. Stat. (2009) (“In construing the statutes in each and every
word, phrase or paragraph, where the context will permit: (1)
the singular includes the plural and vice versa.”).
Id.
Here, the charging document was more specific than simply using the
singular form for the two co-defendants. The petition stated that
“HE/THEY” armed “HIMSELF/THEMSELVES,” clearly using the singular
as well as the plural forms. Since the singular form alone would have been
sufficient, certainly the singular form plus the plural form was enough to
put I.J. on notice. As the concurring opinion stated in B.O.: “If the State
seeks to ‘get the immediate attention of all juveniles and to issue a wake-
up call’ . . . all it must do is simply add the words ‘and in so doing used or
possessed a firearm’ to its charging document.” B.O., 25 So. 3d at 590(Ciklin, J., concurring specially). Similar language was used in the
charging document here (“in the course thereof HE/THEY were armed or
armed HIMSELF/THEMSELVES . . . with . . . a . . . weapon”), and therefore,
the requirements of B.O. were satisfied.
We hold that the trial court erred in failing to impose the mandatory
fifteen days in secure detention as part of I.J.’s disposition for armed
burglary of a conveyance. We reverse for proceedings consistent with this
opinion.
Reversed and remanded with instructions.
DAMOORGIAN and CIKLIN, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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