VINCENT MARGIOTTI, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Vincent Margiotti appeals denial of postconviction relief, challenging his habitual offender designation and ten-twenty-life mandatory minimum sentence. The court reverses in part regarding habitual offender status due to questions about whether a reduced misdemeanor can qualify, but affirms the mandatory minimum sentence imposed for possessing an antique firearm during burglary.
The court reverses and remands regarding habitual offender status because the record does not conclusively refute that a misdemeanor conviction cannot be used for habitualization. The court affirms that the ten-twenty-life mandatory minimum properly applied because the antique firearm, though inoperable, was actually used in the commission of the crime, and the statute applies to firearms as defined in section 790.001 unless they are antique firearms not used in the crime.
[1] A defendant may qualify as a habitual offender if one of the predicate offenses, though initially charged as a felony, was subsequently reduced to a misdemeanor.
[2] An antique firearm is considered a 'firearm' for purposes of the ten-twenty-life law when it is used in the commission of a crime, regardless of its operability.
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Join FLexlaw to unlock all legal intelligence“Defendant contends that he does not qualify as a habitual offender because one of the offenses used for habitualization was a misdemeanor. It had been charged as a felony, but had subsequently been reduced. The defendant has produced some evidence which appears to support his contention, and the record now before us fails to conclusively refute his claim.”
Establishes the ground for reversal regarding habitual offender status based on the misdemeanor conviction issue
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Join FLexlaw to unlock all legal intelligenceMargiotti entered a guilty plea to several felonies and received an eleven-year sentence as a habitual offender, including a ten-year mandatory minimu…
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COPE, J.
Vincent Margiotti appeals an order denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We affirm in part and reverse in part.
Defendant-appellant Margiotti entered a guilty plea to several felonies in exchange for an eleven-year sentence as a habitual offender, with a ten-year mandatory term under the ten-twenty-life law. Defendant contends that he does not qualify as a habitual offender because one of the offenses used for habitualization was a misdemeanor. It had been charged as a felony, but had subsequently been reduced. The defendant has produced some evidence which appears to support his contention, and the record now before us fails to conclusively refute his claim. Accordingly we reverse the order now before us and remand for a hearing on the question whether the defendant qualifies as a habitual offender. See Fla. RApp. P. 9.141(b)(2)(D). On remand the State is free to introduce any other convictions which may qualify the defendant as a habitual offender. See Gordon v. Moore, 832 So. 2d 880, 881 (Fla. 3d DCA 2002); Delevaux v. State, 762 So. 2d 1062 (Fla. 3d DCA 2000).
We affirm the trial court’s order with respect to the second issue. Defendant was given a ten-year mandatory minimum term under the ten-twenty-life law, because of possession of a firearm during the commission of the charged offenses. During the burglary, the defendant used an antique, inoperable firearm. The defendant argues that under ten-twenty-life law, an antique firearm is excluded and the mandatory minimum sentence must be vacated.
We agree with the trial court in rejecting this argument. The ten-twenty-life law applies where the offender “actually possessed a ‘firearm’ or ‘destructive device’ as those terms are defined in s. 790.001 ....”§ 775.087(2)(a)l., Fla. Stat. (1999).* Under subsection 790.001(6), Florida Statutes, “The term ‘firearm’ does not include an antique firearm unless the antique firearm is used in the commission of a crime.”
In this case the elderly victim testified that he was sleeping when the defendant entered his home and began choking him. The defendant pressed a gun to his head and hit him over the head with it. After the crime, the antique firearm was found on the bed where the victim had been sleeping.
Since the record supports the use of the firearm in the commission of the crime, the ten-twenty-life law was properly invoked. The fact that the gun was inoperable makes no difference. See Bentley v. State, 501 So. 2d 600 (Fla.1987); Mitchell v. State, 698 So. 2d 555, 558 (Fla. 2d DCA), ap proved on other grounds, 703 So. 2d 1062 (Fla.1997); State v. Altman, 432 So. 2d 159 (Fla. 3d DCA 1983). The trial court thus correctly denied relief on the claim that the ten-year mandatory minimum sentence could not lawfully be imposed under the facts of this case.
Affirmed in part, reversed in part and remanded for a hearing on the question whether the defendant qualifies as a habitual offender. *
The crime date was July 14, 1999.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Mitchell v. State, 703 So. 2d 1062 (Fla. 1997)
- Bentley v. State, 501 So. 2d 600 (Fla. 1987)
- Daniels v. State, 698 So. 2d 555 (Fla. 1st DCA 1997)
- Mitchell v. State, 698 So. 2d 555 (Fla. 2d DCA 1997)
- State v. Altman, 432 So. 2d 159 (Fla. 3d DCA 1983)
- Delevaux v. State, 762 So. 2d 1062 (Fla. 3d DCA 2000)
- Gordon v. Moore, 832 So. 2d 880 (Fla. 3d DCA 2002)