AIKENS v. STATE, 907 So.2d 563 (Fla.App. 3 Dist. 2005)

Terrance AIKENS, Appellant, v. The STATE of Florida, Appellee.

No. 3D04-1930.District Court of Appeal of Florida, Third District.
July 6, 2005.

Appeal from the Circuit Court, Miami-Dade County, Diane Ward, J.

Clayton R. Kaeiser, Miami, for appellant.

Charles J. Crist, Jr., Attorney General, and Paulette R. Taylor, Assistant Attorney General, for appellee.

Before RAMIREZ, WELLS, and CORTIÑ AS, JJ.

PER CURIAM.

The defendant, Terrance Aikens, appeals from a re-sentencing on his convictions for conspiracy to traffic in cocaine (“Count 1”), attempted first degree murder (“Count 2”), and armed robbery with a firearm (“Count 3”). We affirm, in part, and reverse, in part.

The defendant contends that the trial court erred in imposing a firearm minimum-mandatory sentence on Count 2 for the attempted first degree murder conviction because the information filed against him did not allege that he committed the attempted murder with a firearm. See, e.g., Bryant v. State, 744 So.2d 1225
(Fla. 4th DCA 1999) (holding that a firearm minimum-mandatory sentence may only be imposed if the information charging the defendant with attempted first degree murder alleges that the defendant possessed a firearm during the commission of the crime).

The State contends that the trial court intended to impose the firearm minimum-mandatory sentence on Count 3. In support of its position, the State relies on the May 13, 2004 re-sentencing hearing, where the following statements were made:

THE COURT: So that one, both sides agree that the minimum on Count 2, attempted first degree murder, is 12 years and the maximum is 27 years?
[DEFENSE COUNSEL]: Correct.
THE COURT: With no three year minimum mandatory.
(emphasis added).

Page 564

[DEFENSE COUNSEL]: Correct. That is what we would submit.
THE COURT: [Prosecutor], is that what you agree with as to Count 2?
[PROSECUTOR]: Yes.
THE COURT: Moving to Count 3, it is armed robbery with a firearm and this one it was alleged with a firearm.
. . .
THE COURT: All right. So that would be the same 12 to 27 years with a three year minimum mandatory.
(emphasis added).

Contrary to the re-sentencing hearing, in its August 13, 2004 written order, it appears that the trial court mistakenly imposed the firearm minimum-mandatory sentence on Count 2 instead of Count 3.

We remand for re-sentencing with the instruction that a firearm minimum-mandatory sentence may not be imposed on Count 2.

We find no merit to the defendant’s remaining claims.

Affirmed, in part; reversed, in part; and remanded.