PATRICK W. BLACKMON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Patrick Blackmon appealed denial of post-conviction relief on his guilty plea for armed robbery. The court affirmed denial of his ineffective assistance claim regarding firearm definition but reversed and remanded his claim that counsel misinformed him about gain-time credits, which would have affected his plea decision.
The court held that operability is not a determinative factor under the statutory definition of firearm, so the first claim was properly denied. However, the court reversed the denial of the second claim because the allegations were indistinguishable from those in State v. Leroux, which approved reversal where counsel's advice about gain-time was erroneous.
[1] A firearm, for purposes of armed robbery statutes, includes a weapon designed to expel a projectile by the action of an explosive, regardless of its current operability.
[2] A defendant may be entitled to post-conviction relief if trial counsel provides erroneous advice regarding the length of a mandatory minimum sentence, leading the defenda…
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Join FLexlaw to unlock all legal intelligence“any weapon ... which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive”
Establishes the statutory definition of firearm under § 790.001(6), showing that operability is not a determinative factor
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Join FLexlaw to unlock all legal intelligenceBlackmon pled guilty to robbery with a firearm. In his post-conviction motion, he claimed his attorney failed to inform him that the shotgun used lack…
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PER CURIAM.
In this appeal of an order summarily denying his motion for post-conviction relief, the appellant claims two grounds for reversal. We affirm that part of the order denying the first claim, but we reverse and remand the second claim for further proceedings.
The appellant entered a plea of guilty to robbery with a firearm, among other offenses. In Ground One of his motion, the appellant alleged ineffective assistance of counsel based on his attorney’s failure to inform the appellant that he could not be convicted of armed robbery with a firearm because the shotgun used in the commission of the offense “did not have a firing pin and could not be readily converted to fire.” The crime in question is covered by section 812.13(2), Florida Statutes (1993) (dealing with robbery in which the offender “carried a firearm or other deadly weapon”). Although that statutory provision does not define “firearm,” the “weapons and firearms” chapter defines “firearm” as including “any weapon ... which will, is designed to, or may readily be converted to expel a projectile by the action of an explosive; ...” § 790.001(6), Fla. Stat. (1993). We conclude that the lower tribunal correctly denied this claim on the basis that, under the statutory definition of “firearm,” operability is not a determinative factor. Machado v. State, 363 So. 2d 1132, 1136-37 (Fla. 3d DCA 1978), cert. den., 373 So. 2d 459 (Fla.1979); State v. Altman, 432 So. 2d 159 (Fla. 3d DCA 1983).
Ground Two of the motion alleged that trial counsel had'told the appellant that, while he would serve a mandatory minimum term of 3 years, with gain-time, he would be released at the end of that term. Instead, the appellant did not receive gain-time during that mandatory minimum term, and he is actually serving 4 years and 3 months in prison. The appellant alleged that he would not have accepted the plea if his attorney had given him correct information. We are unable to find any meaningful distinction between these allegations and those in State v. Leroux, 689 So. 2d 235 (Fla.1996) (approving decision of district court reversing order of denial where, notwithstanding a negotiated agreement to 15-year prison sentence with 3-year mandatory minimum, the plea colloquy and other portions of record did not conclusively refute claim that trial counsel had informed the defendant that he would actually be released from prison in 4 years because of his entitlement to provisional gain-time credits, but after his incarceration, the defendant learned that counsel’s advice was erroneous and that he would have to serve more than 7 years before release). Accordingly, we reverse the denial of relief as to Ground Two and remand for further proceedings.
AFFIRMING in part, and REVERSING and REMANDING in part for further proceedings.
WEBSTER, MICKLE and PADOVANO, JJ., concur.
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Serod Stanley v. State, 757 So. 2d 1275 (Fla. 4th DCA 2000)…ich the cashiers gave him. The gun in question, according to Stanley, was a cheap, unreliable gun that lacked a firing pin. However, because the frame of the gun remained intact, it qualified as a firearm, as the state agreed. See Blackmon v. State, 696 So. 2d 918, 918 (Fla. 1st DCA 1997)(gun lacking a firing pin fit definition of a “firearm”). For some reason not revealed in the record, the state did' not charge Stanley with robbery with a “firearm or other deadly weapon” under section 812.13(2)(a), Florida…
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Fox v. Sec'y, Dep't of Corr. (Pinellas County) (M.D. Fla. 2023)…] immaterial to [his] case.” (Id., Ex. 30, at 4). Citing Florida law, the court explained that “[a] gun that does not have any firing pin is [a] ‘firearm’ for purposes of [the] offense of robbery with a firearm.” (Id. at 4 (citing Blackmon v. State, 696 So. 2d 918 (Fla. 1st DCA 1997)). Thus, “[u]nder the statutory definition of ‘firearm,’ operability is not a determinative factor.” (Id. (citing Fla. Stat. § 790.001(9)). The court likewise rejected Mr. Fox’s argument that the report “could have been used to im…
Authorities Cited
- State v. Leroux, 689 So. 2d 235 (Fla. 1996)
- MacHado v. State, 363 So. 2d 1132 (Fla. 3d DCA 1978)
- State v. Altman, 432 So. 2d 159 (Fla. 3d DCA 1983)