TERRANCE COLEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Terrance Coley appealed the trial court's denial of his Rule 3.850 motion alleging ineffective assistance of counsel and challenging the factual basis for convictions and mandatory minimum sentences. The appellate court reversed in part, finding that the trial court erred in denying claims regarding ineffective counsel regarding kidnapping pleas and the improper imposition of mandatory minimums based on a BB gun rather than a firearm.
The court reversed the trial court's denial of both claims. The trial court erred in finding the ineffective assistance claim refuted by the plea transcript when the State had not established a factual basis for kidnapping. Additionally, a BB gun does not constitute a firearm under Florida law, so minimum mandatory sentences for firearm possession cannot be imposed based on a BB gun.
[1] A motion for postconviction relief alleging ineffective assistance of counsel for failing to move for a judgment of acquittal is legally sufficient if not refuted by the…
[2] A trial court must attach portions of the record that conclusively refute a claim of ineffective assistance of counsel to properly issue a summary denial.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Coley has presented a facially sufficient claim. See Benavidez v. State, 749 So.2d 528 (Fla. 2d DCA 1999). The trial court denied this claim, finding that it was refuted by the transcript of the plea hearing. However, at the plea hearing, in providing the factual basis for the offenses to the trial court, the State indicated only that Coley had admitted to using a pellet gun to rob the store.”
Establishes that the trial court erred in denying the ineffective assistance claim when the State did not establish a factual basis for the kidnapping charges at the plea hearing.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceColey pleaded guilty to four counts of kidnapping and three counts of armed robbery with a firearm or deadly weapon. At the plea hearing, the State in…
The full statement of facts, procedural history, and disposition for this case are member content.
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SALCINES, Judge.
Terrance Coley challenges the order of the trial court summarily denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm in part, reverse in part, and remand for further proceedings.
According to the trial court’s order, Coley pleaded to four counts of kidnapping and three counts of armed robbery with a firearm or deadly weapon.1 The written sentences indicate that on the robbery convictions the trial court imposed concurrent three-year minimum mandatory sentences for possession of a firearm pursuant to section 775.087(2), Florida Statutes (1997). Coley alleged that counsel was ineffective for advising him to plead to the kidnapping counts when he was innocent of those charges and no factual basis was established.2 Coley has presented a facially sufficient claim. See Benavidez v. State, 749 So. 2d 528 (Fla. 2d DCA 1999).
The trial court denied this claim, finding that it was refuted by the transcript of the plea hearing.
However, at the plea hearing, in providing the factual basis for the offenses to the .trial court, the State indicated only that Coley had admitted to using a pellet gun to rob the store. We therefore reverse the denial of this claim. If the trial court again denies the claim without an evidentiary hearing, it shall attach to its order those portions of the record that conclusively refute the claim.
Coley also alleged that there was no factual basis to support the imposition of the minimum mandatory terms for possession of a firearm, because he carried a BB pellet gun and a BB gun does not constitute a firearm. This is a cognizable 3.850 claim. See State v. Mancino, 705 So. 2d 1379 (Fla.1998).
The trial court denied the claim, finding that a BB gun does qualify as a firearm for the imposition of the three-year minimum mandatory. In support of its finding, the trial court cited to Mitchell v. State, 698 So. 2d 555 (Fla. 2d DCA 1997).
However, Mitchell explicitly holds that a BB gun does not fit the definition of a firearm.
Thus, the possession of a BB gun by a defendant cannot support the imposition of the three-year minimum mandatory pursuant to section 775.087(2).
We reverse the denial of this claim and remand for further proceedings. If the trial court again denies the claim, it shall provide those record attachments that conclusively refute the claim or hold an evidentiary hearing. See Benavidez.
We affirm without comment the trial court’s denial of the remainder of the claims in Coley’s motion.
Affirmed in part, reversed in part, and remanded.
ALTENBERND, A.C.J., and NORTHCUTT, J„ Concur. . The record on appeal does not contain a copy of the information; however, the initial brief filed in the plenary appeal and the State’s answer brief both indicate that the offense occurred on July 22, 1997.
. Coley alleges that any movement of the victims was incidental to the robberies and thus did not constitute the offense of kidnapping. See Berry v. State, 668 So. 2d 967 (Fla.1996) (stating that the act of moving robbery victims from one room to another, closing the door, and ordering them not to come out would not be sufficient to support a kidnapping conviction).
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Skellie v. State, 849 So. 2d 1220 (Fla. 5th DCA 2003)…vely refute appellant’s claim, the order denying relief is reversed, and the case is remanded for the trial court to either attach documents refuting the claim of ineffective assistance of counsel, or hold an evidentiary hearing. Cf. Coley v. State, 801 So. 2d 205 (Fla. 2d DCA 2001). REVERSED and REMANDED. SAWAYA, C.J., and PLEUS, J., concur. . Skellie entered his plea on 21 June 2000, whereas the final Delgado opinion was not issued until 24 August 2000. However, the initial Delgado opinion, later withdra…
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Kilien Gerome Cesar v. State, 94 So. 3d 703 (Fla. 4th DCA 2012)…the State must prove that a defendant had actual possession of the firearm. See Knight v. State, 70 So. 3d 674, 675 (Fla. 1st DCA 2011). A toy gun does not fit within the definition of firearm under the 10-20-life statute. See, e.g., Coley v. State, 801 So. 2d 205, 206-07 (Fla. 2d DCA 2001) (holding that a BB gun is not a firearm under the 10-20-life statute). Thus, the sentencing enhancement must be vacated. Affirmed in part; vacated in part. WARNER and TAYLOR, JJ., concur.…
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Agenor v. State, 268 So. 3d 868 (Fla. 2d DCA 2019)…A), approved, 703 So. 2d 1062 (Fla. 1997); Santiago v. State, 900 So. 2d 710, 711 (Fla. 3d DCA 2005). But a BB gun cannot qualify as a "firearm" for purposes of imposing a mandatory minimum sentence under the 10/20/life statute. Coley v. State, 801 So. 2d 205, 206 (Fla. 2d DCA 2001) ("Mitchell explicitly holds that a BB gun does not fit the definition of a firearm."). Thus, none of the charges supported the trial court's imposition of ten-year mandatory minimum sentences. Moreover, as part of his nol…
Authorities Cited
- Germaine Berry v. State, 668 So. 2d 967 (Fla. 1996)
- State v. Mancino, 705 So. 2d 1379 (Fla. 1998)
- Daniels v. State, 698 So. 2d 555 (Fla. 1st DCA 1997)
- Mitchell v. State, 698 So. 2d 555 (Fla. 2d DCA 1997)
- Benavidez v. State, 749 So. 2d 528 (Fla. 2d DCA 1999)