MITCHOUN ALUSMA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a defendant is entitled to post-conviction relief when trial counsel fails to object to firearm enhancements on kidnapping convictions where the jury did not specifically find actual firearm possession.
Alusma argued his trial attorney was ineffective for not objecting to the reclassification of his kidnapping convictions based on firearm use. The jur…
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PER CURIAM.
Mitchoun Alusma appeals the denial of his rule 3.850 motion for post-conviction relief. Alusma argued, in part, that his trial attorney provided ineffective assistance of counsel by failing to object to the reclassification of his kidnapping convictions based on the use of a firearm pursuant to section 775.087, Florida Statutes (1993). He maintained that the convictions could not be reclassified as life felonies and that the court could not impose a mandatory minimum sentence for these convictions without the jury finding beyond a reasonable doubt that he actually possessed a firearm. See Thompson v. State, 862 So. 2d 955 (Fla. 2d DCA 2004) (discussing State v. Overfelt, 457 So. 2d 1385 (Fla.1984) and State v. Tripp, 642 So. 2d 728 (Fla.1994)).
The information charged Alusma and his co-defendants with armed kidnapping, and the jury was instructed that it could convict him based on a principal theory. As a result, the jury’s verdict does not necessarily reflect that Alusma was in actual possession of a firearm. See Thompson, 862 So. 2d at 958. On appeal, the state agrees that Alusma has stated a legally sufficient claim and that this case is essentially indistinguishable from Thompson.
Accordingly, we reverse and remand for the circuit court to vacate the firearm enhancement and re-sentence Alusma with a corrected scoresheet. The court shall also vacate the mandatory minimum sentences. By correcting the reclassification of the kidnapping convictions, claim three of Alusma’s motion will be moot. We affirm the denial of claim one.
STONE, TAYLOR and HAZOURI, JJ., concur.
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Connolly v. State, 172 So. 3d 893 (Fla. 3d DCA 2015)…ave been reclassified from a second-degree felony to a first-degree felony based on use of a weapon pursuant to section 775.087(1), where the evidence showed that only the co-defendant possessed or used a weapon during the offense); Alusma v. State, 939 So. 2d 1081 (Fla. 4th DCA 2006) (reversing reclassification under section 775.087(1) where the defendant was convicted as a principal with his co-defendant, and the verdict did not reflect that the defendant was in actual possession of the firearm during the of…
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Freudenberger v. State, 940 So. 2d 551 (Fla. 2d DCA 2006)…statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); see Thompson v. State, 862 So. 2d 955, 958 (Fla. 2d DCA 2004); Alusma v. State, 939 So. 2d 1081 (Fla. 4th DCA 2006). In this case, the jury did not make the necessary specific findings to support the enhancements. The jury’s verdicts do not include a finding that Mr. Freudenberger selected the church as his victim because of a bias against its…
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Harris v. State, 182 So. 3d 859 (Fla. 4th DCA 2016)…hancement. See State v. Rodriguez, 602 So. 2d 1270, 1271 (Fla.1992). The record before this court is insufficient to permit substantive review of the claim. Id. at 1271; see also Connolly v. State, 172 So. 3d 893 (Fla. 3d DCA 2015); Alusma v. State, 939 So. 2d 1081 (Fla. 4th DCA 2006). Also, we decline to accept the jury’s firearm finding associated with Count II to satisfy the required finding for Count I. See generally Streeter v. State, 416 So. 2d 1203 (Fla. 3d DCA 1982). On remand, the trial court shall co…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Overfelt, 457 So. 2d 1385 (Fla. 1984)
- State v. Vinney Tripp, 642 So. 2d 728 (Fla. 1994)
- Wight v. G. Leonard Gioia, M.D., 862 So. 2d 955 (Fla. 5th DCA 2004)