Summary
reversing reclassification under section 775.087 where the defendant was convicted as a principal with his co-defendant, and the verdict did not reflect that the defendant was in actual possession of the firearm during the offense
Summary of this case from Connolly v. StateOpinion
No. 4D05-263.
July 12, 2006. Rehearing Denied November 98, 2006.
Appeal from the Seventeenth Judicial Circuit Court, Broward County, Sheldon Schapiro, J.
Carey Haughwout, Public Defender, Joseph R. Chloupek, Assistant Public Defender, West Palm Beach, and Mitchoun Alusma, South Bay, for appellant.
Charles J. Crist, Jr., Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
Mitchoun Alusma appeals the denial of his rule 3.850 motion for postconviction relief. Alusma argued, in part, that his trial attorney provided ineffective assistance of counsel by failing to object to the reclassification of his kidnapping convictions based on the use of a firearm pursuant to section 775.087, Florida Statutes (1993). He maintained that the convictions could not be reclassified as life felonies and that the court could not impose a mandatory minimum sentence for these convictions without the jury finding beyond a reasonable doubt that he actually possessed a firearm. See Thompson v. State, 862 So.2d 955 (Fla. 2d DCA 2004) (discussing State v. Overfelt, 457 So.2d 1385 (Fla. 1984) and State v. Tripp, 642 So.2d 728 (Fla. 1994)).
The information charged Alusma and his co-defendants with armed kidnapping, and the jury was instructed that it could convict him based on a principal theory. As a result, the jury's verdict does not necessarily reflect that Alusma was in actual possession of a firearm. See Thompson, 862 So.2d at 958.
On appeal, the state agrees that Alusma has stated a legally sufficient claim and that this case is essentially indistinguishable from Thompson.
Accordingly, we reverse and remand for the circuit court to vacate the firearm enhancement and resentence Alusma with a corrected scoresheet. The court shall also vacate the mandatory minimum sentences. By correcting the reclassification of the kidnapping convictions, claim three of Alusma's motion will be moot. We affirm the denial of claim one.
STONE, TAYLOR and HAZOURI, JJ., concur.