STATE OF FLORIDA

v.

DONNELL LEE INGRAM

GROSSHANS, J.

The State appeals the probationary sentence imposed on Donnell Lee Ingram after he pled no contest to possession of a firearm by a convicted felon, possession of methamphetamine, and possession of less than 20 grams of cannabis. On appeal, the State argues that the trial court erred by failing to impose the three-year mandatory minimum prison sentence required by section 775.087(2), Florida Statutes (2018).

We agree and reverse, holding that the trial court lacked authority to impose a sentence without the applicable three-year mandatory minimum term.

The State charged Ingram with possession of a firearm by a convicted felon and three drug-related crimes. As for the felon-in-possession charge, the State alleged that Ingram actually possessed a firearm while committing the offense.

Prior to entering a plea, the parties engaged in a discussion with the trial court about the potential sanctions for the felon-in-possession charge. Defense counsel argued that section 948.20, Florida Statutes (2018), authorized the court to impose drug offender probation without the three-year mandatory minimum sentence which otherwise would have been required by section 775.087(2) based on Ingram actually possessing a firearm.

The prosecutor objected “for the record,” indicating that his office would likely appeal a sentence that did not include the mandatory minimum term.

Ultimately, after finding that Ingram qualified as a chronic substance abuser, the court announced that it would place him on drug offender probation for three years without any mandatory minimum term of imprisonment. Ingram then entered his plea of no contest to the charges, and the trial court imposed a probationary sentence consistent with its earlier pronouncement. The State timely appealed. “The legality of a sentence is a question of law and is subject to de novo review.” Pinkard v. State, 185 So. 3d 1289, 1289–90 (Fla. 5th DCA 2016) (quoting Flowers v. State, 899 So. 2d 1257, 1259 (Fla. 4th DCA 2005)). Similarly, statutory interpretation is also subject to de novo review. See Hilton v. State, 961 So. 2d 284, 288 (Fla. 2007). 2 The State argues that the trial court imposed an illegal sentence when it failed to apply the three-year mandatory minimum sentence to a felon-in-possession charge in contravention of section 775.087(2). 1 We agree.

Under the facts of this case, the drug offender probation statute and section 775.087(2) conflict. Here, the court found that Ingram qualified for drug offender probation under the terms of the drug offender probation statute. By its general provisions, that statute would authorize the court to consider a non-prison sentence. See § 948.20(1).

However, section 775.087(2) requires a court to impose a minimum prison sentence when a defendant actually possesses a firearm during the commission of certain enumerated felonies, including the crime of possessing a firearm by a convicted felon. § 775.087(2)(a)1.q.

To resolve this apparent discrepancy between the statutes, we apply an accepted rule of statutory construction—when two statutes appear in conflict, the specific statute controls over the general statute. See McKendry v. State, 641 So. 2d 45, 46 (Fla. 1994).

The more specific statute is to be viewed as an exception to the terms of the general statute. See Floyd v. Bentley, 496 So. 2d 862, 864 (Fla. 2d DCA 1986).

Here, section 775.087(2) expressly provides the punishment for a defendant who actually possesses a firearm when committing one of seventeen listed offenses, including 1 While the State did not raise a specific objection as to the legality of the sentence, the court’s failure to impose the mandatory minimum term constituted an illegal sentence and may be challenged for the first time on appeal. See State v. Kremer, 114 So. 3d 420, 421 (Fla. 5th DCA 2013) (“[W]hen a sentence is illegal, the error is fundamental, and a sentence is illegal when it is shorter than the required mandatory minimum sentence.” (first citing State v. Valera, 75 So. 3d 330, 332 (Fla. 4th DCA 2011); and then citing State

v. Strazdins, 890 So. 2d 334, 335 (Fla. 2d DCA 2004))). 3 possession of a firearm by a convicted felon. 2 Thus, section 775.087(2) requires a specific minimum sentence for those who are convicted of the crime of possession of a firearm by a convicted felon and who actually possess a firearm during commission of that offense.

See § 775.087(2)(a)1.q. In contrast, the drug offender probation statute addresses a far broader range of crimes, including both drug-related crimes and other “nonviolent” felonies. See § 948.20(1). Moreover, that statute does not provide a specific punishment for a felon who actually and unlawfully possesses a firearm. Id. Thus, we hold that section 775.087(2), as the more specific statute, required the imposition of a three-year mandatory minimum term of incarceration for the felon-in-possession count. Accordingly, the trial court lacked the authority to impose only drug offender probation in connection with the felon-in-possession count, thereby rendering illegal the probationary sentence as to that count. See Kremer, 114 So. 3d at 421.

Therefore, we reverse Ingram’s probationary sentence as to the felon-inpossession charge and remand for further proceedings. Because Ingram’s plea may have been induced by the trial court’s indication that it would impose a probationary sentence, Ingram, on remand, should be given the opportunity to withdraw his plea. See State v. Champion, 898 So. 2d 1111, 1112 (Fla. 2d DCA 2005).

REVERSED and REMANDED with directions.

COHEN and HARRIS, JJ., concur. 2 § 775.087(2)(d), Fla. Stat. (2018) (“It is the intent of the Legislature that offenders who actually possess, carry, display, use, threaten to use, or attempt to use firearms or destructive devices be punished to the fullest extent of the law, and the minimum terms of imprisonment imposed pursuant to this subsection shall be imposed for each qualifying felony count for which the person is convicted.”). 4