             DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT
                             July Term 2014

                      TYRON TERRANCE ROBERTS,
                              Appellant,

                                      v.

                            STATE OF FLORIDA,
                                 Appellee.

                               No. 4D12-4474

                            [ November 19, 2014 ]

   Appeal from the Circuit Court for the Nineteenth Judicial Circuit,
Indian River County; Robert L. Pegg, Judge; L.T. Case No.
312010CF001562A.

   Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public
Defender, West Palm Beach, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Matthew Steven
Ocksrider, Assistant Attorney General, West Palm Beach, for appellee.

TAYLOR, J.

    After a jury trial, appellant, Tyron Terrance Roberts, was found guilty
as charged of robbery with a deadly weapon. As his sole issue on appeal,
appellant challenges the ten-year mandatory minimum portion of his
sentence, imposed pursuant to section 775.087(2)(a)1., Florida Statutes
(2010). He argues that the mandatory minimum term should be vacated
because it cannot be determined that the jury clearly found that he
actually possessed a firearm during the commission of the robbery. This
is so, he argues, because the jury was instructed as part of the robbery
jury instruction that “an act is in the course of committing the robbery if
it occurs in an attempt to commit the robbery or in flight after the attempt
or commission.” Citing Lemus v. State, 33 So. 3d 774 (Fla. 4th DCA 2010),
appellant contends that, for purposes of the mandatory minimum for
actual possession of a firearm during the course of a crime under section
775.087(2)(a), the possession must actually be during the commission of
the crime itself and not during the temporal episode surrounding the
crime. We disagree and affirm the mandatory minimum term, because the
jury’s finding that appellant actually possessed a firearm, even during
flight from the robbery, would be sufficient to satisfy the requirements of
section 775.087(2)(a).

    On the day of the robbery, a man wearing a bandana and blue shirt
approached a bank teller at her station and handed her a note. The note
stated, “Give me money I have a gun.” The man whispered to her that he
really did have a gun. The teller never actually saw a gun or any kind of
bulge in the man’s clothes. But because he said he had a gun, she was
frightened and complied with his demands. She opened her cash drawer
and removed approximately $2,300. She also put a bait (GPS tracker) with
the cash before she pushed it towards him. The man took the money and
the note and left the building. The teller notified her supervisor that she
had been robbed. The police arrived and the teller spoke to a detective.

    A detective received a call from dispatch that the robbery suspect’s
vehicle was located at a citrus packing plant. When the detective arrived
at the plant, he observed appellant running from a Jeep. The detective
chased appellant to the loading dock of the plant. Appellant tried to climb
the loading dock platform, but his foot got caught on the bay door and he
fell to the ground. The detective was approximately fifteen feet behind
appellant and saw a gun slide out from appellant’s waistband. Appellant
attempted to recover the gun, but it slid away from his grasp.

   Appellant got up and ran into the packing plant while the detective
continued to chase him. When the detective eventually apprehended
appellant, they were outside the plant. The detective searched appellant
and asked him if he had any weapons on his person. Appellant responded,
“you already saw the one gun, what [do] you think I do, carry two.”

   An employee of the citrus plant witnessed appellant attempt to enter
the plant through the loading dock. The employee saw appellant fumbling
around the floor and trying to get to his feet. He also saw appellant drop
a gun. When appellant and the detective ran by, the employee stood by
the gun to make sure that no one else came and moved it. He stayed with
the gun until an officer returned to take custody of it. Other evidence
collected near or inside the Jeep included a wig, a bandana, a blue shirt,
and a stack of money with a concealed GPS tracker.

   A firearm examiner for the Indian River Crime Laboratory found the
gun was in working order, but the firearm was not submitted for DNA
testing and no usable prints were found on it.



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   Once detectives apprehended appellant, they drove the bank teller to
the citrus plant. She identified appellant as the person who robbed the
bank.

   The detective who interviewed appellant after he was detained asked
appellant, “When did you make up your mind that you were going to rob
that bank?” Appellant responded, “It was a last second decision.
(Inaudible) just doing bad, man. Things just been going bad for me.”
Later, appellant again explained that he just needed money because he
had not worked and things were not going right for him.

    The detective asked appellant if he pulled a gun on the teller. Appellant
denied having a gun in his possession when he was in the bank. He said
that he did not threaten the teller with the gun; he just told the teller to
give him the money. He later admitted that the note he handed to the
teller stated that he had a gun. He also admitted to the detective that the
gun fell out of his pocket when he fled from the Jeep at the citrus plant.

   Appellant was charged in Count I of the Information with Robbery with
a Deadly Weapon. The Information alleged that:

      Tyron Terrance Roberts did take certain property, to-wit: U.S.
      Currency, from the person or custody of [the bank teller] or
      [the bank], with the intent to permanently or temporarily
      deprive the said person or owner of the property, and in the
      course of the taking there was the use of force, violence,
      assault, or putting in fear, and during the course of the
      commission of the robbery, the defendant actually possessed a
      firearm, in violation of Florida Statutes 775.087 (10/20/Life),
      812.13(1) and 812.13(2T)(a).

(Emphasis added).

    Appellant testified at trial and denied committing the robbery. He said
that he confessed during the police interrogation only to protect the driver
of the Jeep from being charged. On cross-examination, appellant said that
he never had a gun and denied knowledge of the note used in the robbery.
When asked about his response to the detective’s questions about his
possession of a gun—“you already saw the one gun, what [do] you think I
do, carry two”—appellant acknowledged that he “may have said that.”

   The trial court instructed the jury:



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          To prove the crime of robbery, the State must prove the
      following four elements beyond a reasonable doubt. One,
      Tyron Roberts took the money from the person or custody of
      [the bank teller] or [the bank]. Two, force, violence, assault or
      putting in fear was used in the course of the taking. Three,
      the property taken was of some value. Four, the taking was
      with the intent to permanently or temporarily deprive [the
      bank teller] or [the bank] of her right to the property or any
      benefit from it or appropriate the property of [the bank teller]or
      [the bank] to his own use or the use of any person not entitled
      to it.

         The phrase in the course of the taking means that the act
      occurred prior to, contemporaneous with or subsequent to the
      taking of the property, that the act and the taking of the
      property, that the act and the taking of the property constitute
      a continuous series of acts or events.

         ....

         An act is in the course of committing the robbery if it
      occurs in an attempt to commit the robbery or in flight after
      the attempt or commission.

   The jury found appellant guilty of robbery and indicated on the verdict
form their finding that the “defendant actually possessed a firearm in the
course of committing the robbery.” Appellant was sentenced to thirty years
in prison, with a ten-year minimum mandatory sentence pursuant to
section 775.087(2)(a), Florida Statutes (2010).

    While appellant’s appeal was pending, appellant filed two motions to
correct sentencing error, contending that the ten-year mandatory
minimum was an illegal sentence. In both motions, appellant argued that
because of the language used on the verdict form, it was not clear whether
the jury found that appellant possessed a firearm “during the commission”
of the robbery, or “in the course of committing” the robbery. The trial court
denied the motions.

    In Alleyne v. United States, 133 S. Ct. 2151, 2158 (2013), the United
States Supreme Court held that, pursuant to Apprendi v. New Jersey, 530
U.S. 466 (2000), any fact that increases the mandatory minimum sentence
for a crime is an “element” that must be submitted to the jury and found
beyond a reasonable doubt.


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  In Florida, a criminal defendant faces an enhanced mandatory
minimum sentence when the defendant possesses a firearm during the
commission of an enumerated offense:

         Any person who is convicted of a felony or an attempt to
      commit a felony, regardless of whether the use of a weapon is
      an element of the felony, and the conviction was for:

         ....

         c. Robbery;

         ....

      and during the commission of the offense, such person actually
      possessed a “firearm” or “destructive device” as those terms
      are defined in s. 790.001, shall be sentenced to a minimum
      term of imprisonment of 10 years . . . .

§ 775.087(2)(a)1., Fla. Stat. (2010) (emphasis added).

    The Florida Supreme Court clarified the jury findings necessary for
imposing the mandatory minimum enhancement under section
775.087(2)(a), Florida Statutes, in State v. Iseley, 944 So. 2d 227 (Fla.
2006). After reviewing earlier cases where the court considered the
sufficiency of a jury verdict to support penalty enhancements mandated
by section 775.087(2)(a), the court reiterated its requirement that the
enhanced penalty be predicated upon a ‘clear jury finding’ that the
defendant possessed a firearm during the commission of the felony. Iseley,
944 So. 2d at 230 (quoting State v. Hargrove, 694 So. 2d 729, 731 (Fla.
1997)). “This requisite ‘clear jury finding’ can be demonstrated either by
(1) a specific question or special verdict form (which is the better practice),
or (2) the inclusion of a reference to a firearm in identifying the specific
crime for which the defendant is found guilty.” Id. at 231 (citing Tucker v.
State, 726 So. 2d 768, 771-72 (Fla. 1999) and State v. Overfelt, 457 So. 2d
1385, 1387 (Fla. 1984)).

    Appellant argues that it cannot be determined that the jury clearly
found that appellant actually possessed a firearm during the commission
of the robbery, given the unique facts in this case and the robbery jury
instructions and interrogatory, because the jury was instructed as part of
the robbery jury instruction that “an act is in the course of committing the
robbery if it occurs in an attempt to commit the robbery or in flight after
the attempt or commission.” Further, the jury did not find that he had

                                        5
actual possession of a firearm “during the commission of the offense,” but
instead found that appellant had possession of a firearm “in the course of
committing the robbery.”

   Relying on Lemus v. State, 33 So. 3d 774 (Fla. 4th DCA 2010), appellant
contends that for purposes of the mandatory minimum for actual
possession of a firearm during the course of a crime under section
775.087(2)(a), the possession must actually be during the commission of
the crime itself and not during the temporal episode surrounding the
crime. Here, he argues, the robbery instructions allowed the jury to find
that appellant actually possessed the firearm during the commission on
the robbery based on events that occurred during his flight.

   Lemus is inapplicable to the facts of this case. There, the defendant
was charged with two counts of aggravated assault with a firearm on a law
enforcement officer and one count of discharging a firearm in public. Id.
at 774. He was found guilty and sentenced to the mandatory minimum
under section 775.087(2)(a)2 for discharging a firearm or destructive
device during the commission of a felony.

    On appeal, we held that the evidence could not support a finding that
the defendant discharged a firearm during the commission of the felony,
aggravated assault. Id. The aggravated assaults were committed when
the defendant, using a gun, threatened and placed the officer in fear. Id.
at 775-776. Because the defendant fired the shots seven hours prior to
pointing the gun at the officers, it could not be said that defendant
discharged the gun “during the commission” of the aggravated assault
offenses. Id. at 776.

    Lemus can be distinguished from this case because the defendant in
Lemus was charged with aggravated assault on a law enforcement officer
under section 784.07(2)(c). Unlike the robbery statute, the aggravated
assault and assault statutes1 do not specify a period for the commission
of the crime. The crime is complete once the defendant makes a threat
and places someone in fear.




1 Section 784.021(1)(a), Florida Statutes (2010), defines “aggravated assault” is
an assault: (a) With a deadly weapon without intent to kill. “An ‘assault’ is an
intentional, unlawful threat by word or act to do violence to the person of another,
coupled with an apparent ability to do so, and doing some act which creates a
well-founded fear in such other person that such violence is imminent.” §
784.011(1), Fla. Stat. (2010).

                                           6
    The crime of robbery, on the other hand, continues during flight after
attempt or commission of the robbery. Section 812.13(3)(a), Florida
Statutes (2010), states that “[a]n act shall be deemed ‘in the course of
committing the robbery’ if it occurs in an attempt to commit robbery or in
flight after the attempt or commission.” See Grant v. State, 138 So. 3d
1079, 1085 (Fla. 4th DCA 2014) (noting that “section 812.13(3)(a)
expressly defines the phrase ‘in the course of committing the robbery’ to
include a robber’s flight after an attempted robbery”); Parker v. State, 570
So. 2d 1048, 1053 (Fla. 1st DCA 1990) (holding that the defendant’s
possession of a firearm during flight from the robbery is sufficient to
support imposition of a section 775.087(2)(a) mandatory minimum
sentence).

   Thus, unlike the defendant in Lemus, appellant was involved in a single
continuous criminal episode, so that even without strong circumstantial
evidence that appellant possessed the firearm at the bank, evidence that
he was is actual physical possession during his flight from the robbery was
sufficient to support imposition of the mandatory minimum.

   Here, the jury’s verdict constituted a “clear jury finding” that appellant
possessed a firearm during the commission of the robbery, thus
authorizing the trial court to impose the statutory minimum sentence. The
information charged that appellant actually possessed a firearm during
the course of the commission of the robbery, in violation of section
775.087(2)(a), and the verdict form contained an express reference to the
use of a firearm in the commission of the robbery. See Iseley, 955 So. 2d
at 231; Grant, 138 So. 3d at 1086 (“To ‘enhance a defendant’s sentence
under section 775.087(2), the grounds for enhancement must be clearly
charged in the information,’” and the jury must make a finding that the
defendant actually possessed the gun). Accordingly, we affirm the
mandatory minimum term imposed as part of appellant’s sentence.

   Affirmed.

GROSS and GERBER, JJ., concur.

                             *         *         *

   Not final until disposition of timely filed motion for rehearing.




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