          DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                        GEORGE MATO DOTEL,
                             Appellant,

                                    v.

                         STATE OF FLORIDA,
                              Appellee.

                             No. 4D11-4356

                           [August 19, 2015]

   Appeal and cross-appeal from the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Jeffrey J. Colbath, Judge; L.T. Case
No. 2008CF011497DMB.

   Anthony M. Genova, Miami, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel,
Assistant Attorney General, West Palm Beach, for appellee.

MAY, J.

    The defendant appeals his conviction and sentence for first-degree
murder and four other related counts. He argues the trial court erred in:
(1) denying his motion to suppress, (2) instructing the jury outside the
presence of the defendant and his lawyer, (3) denying his request for a
special independent act instruction, and (4) denying his motion for
judgment of acquittal. The State cross-appeals and argues the court erred
in: (1) reducing the armed robbery conviction to a robbery conviction, and
(2) instructing the jury on duress and independent act defenses. We find
no merit in the issues raised by the defendant, but agree with the State
that the court erred in reducing the armed robbery conviction to simple
robbery. We therefore affirm the defendant’s conviction, but reverse on
the cross-appeal and remand the case to the trial court.

   The charges arose from the robbery of the Three Amigos convenience
store. Four armed men, the co-defendants, entered the store while the
defendant remained outside in the car. The co-defendants ordered the
store customers to lie down and restrained them with zip ties. They
ordered the store employees to open the cash registers while threatening
them at gunpoint. They took approximately $50,000, struck the store
owner, and left in the car driven by the defendant.

   The store owner called 911 and followed the co-defendants. During the
chase, one of the co-defendants shot at the store owner who was following
them. A bullet fatally struck the driver of another vehicle that was passing
by; another bullet barely missed the passenger. Law enforcement was able
to apprehend three of the co-defendants shortly after the shooting, but the
defendant escaped. After obtaining a warrant based on phone records
from the three arrested co-defendants, law enforcement arrested the
defendant.

   Detectives interviewed the defendant, who admitted to driving the
getaway car, but denied having any knowledge of the co-defendants’ intent
to commit the robbery. The defendant moved pre-trial to suppress his
statements; the trial court denied the motion.

   The State charged the defendant with thirteen counts. The jury found
the defendant guilty of burglary with an assault/battery on the store owner
while armed with a firearm, robbery with a firearm of a store customer,
and the lesser-included offenses of false imprisonment with a firearm on
the two kidnapping charges. The jury was unable to reach a verdict on
the murder charge, and found the defendant not guilty of the remaining
eight counts.

    A second trial resulted in a finding of guilt on the murder charge. The
trial court vacated the sentence for the convictions from the first trial, and
sentenced the defendant to life imprisonment on the murder conviction.
The defendant appealed; the State cross-appealed.

   The defendant argues the court erred in denying his motion to suppress
his statement because law enforcement violated his constitutional right
against self-incrimination. The State responds the trial court properly
denied the motion to suppress. We agree with the State.

   When reviewing motions to suppress, we “defer to the trial court’s
factual findings but review legal conclusions de novo.” Pantin v. State, 872
So. 2d 1000, 1002 (Fla. 4th DCA 2004) (quoting Backus v. State, 864 So.
2d 1158, 1159 (Fla. 4th DCA 2003)).

   The defendant argues: (1) he was not properly advised of his Miranda1
rights during the interrogation, and (2) his statements were involuntary

1   Miranda v. Arizona, 384 U.S. 436 (1966).

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due to police intimidation and threats. The State responds that the
defendant’s constitutional rights were not violated during the
interrogation. We agree with the State.

   The detectives conducted the interrogation in Spanish because the
defendant spoke little English. The detectives gave the defendant a rights
waiver form in Spanish. He read his rights from the form and responded
that he understood them.

   He told the detectives he did not know the co-defendants intended to
rob the store; he thought the store owner owed them money. When the
co-defendants exited the store, he drove away fast as instructed by the co-
defendants. The detectives accused the defendant of lying and playing
games. We find no error in the trial court’s denial of the defendant’s
motion to suppress based upon the arguments made at trial.2

   In its cross-appeal, the State argues the trial court improperly reduced
the defendant’s robbery with a firearm conviction to simple robbery. The
State argues we clarified the law in this area subsequent to the trial court’s
decision, and the robbery with a firearm conviction should be reinstated.
We agree and reverse on this issue.

   We have de novo review of this legal issue. Kasischke v. State, 991 So.
2d 803, 807 (Fla. 2008).

    The jury in the first trial found the defendant guilty of robbery with a
firearm.     This conviction carried a maximum sentence of life
imprisonment.      § 812.13(2)(a), Fla. Stat. (2007).      However, during
sentencing after the second trial, the trial court reduced that conviction to
unarmed robbery, punishable by a maximum of fifteen years’
imprisonment.

    The trial court reduced the conviction based on its interpretation of
section 775.087, Florida Statutes (2007), and existing case law. It
explained: “I’m going to interpret it that you’re a principal unless you
possessed a weapon[;] if your co-principals possessed a weapon that that
[sic] doesn’t make a robbery charge enhanced as to the person that didn’t
possess.”


2 In a supplemental brief, the defendant argues that the record reflects he had a
low IQ, was unable to perform simple tasks for himself, and may have been
incompetent. These arguments were not made to the trial court in the motion to
suppress, but may be appropriate for a request for post-conviction relief.

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   Our supreme court has held that the statutory enhancement found in
section 775.087, Florida Statutes (2007), does not apply to defendants who
do not actually possess the firearm. See State v. Rodriguez, 602 So. 2d
1270, 1272 (Fla. 1992). Section 812.13, however, already enhances the
penalty to life imprisonment when a robbery is committed with a firearm.
§ 812.13(2)(a), Fla. Stat.

   In Cesar v. State, 94 So. 3d 703 (Fla. 4th DCA 2012), we reconciled the
two statutes. “[W]hile ‘possession of a firearm by a codefendant is
sufficient to convict a defendant of armed robbery, pursuant to the
principal theory, it is not a sufficient basis to warrant the imposition of the
[10-20-life] mandatory minimum sentence.’” Id. at 704 (second alteration
in original) (quoting Freeny v. State, 621 So. 2d 505, 506 (Fla. 5th DCA
1993)).

    Here, it was uncontroverted that multiple co-defendants possessed
firearms during the robbery. The jury convicted the defendant of robbery
with a firearm as a principal. Section 812.13 provided for a life sentence
without the need to rely on section 775.087. The trial court erred when it
reduced the defendant’s conviction from armed robbery to robbery. We
therefore reverse and remand the case to the trial court to reinstate the
armed robbery conviction and the life sentence.

   Affirmed on direct appeal. Reversed on cross-appeal.

KLINGENSMITH, J., and ROBY, WILLIAM L., Associate Judge, concur.

                             *        *         *

   Not final until disposition of timely filed motion for rehearing.




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