AIKENS v. STATE (2005)

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).

[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.

PER CURIAM.