         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                  NOT FINAL UNTIL TIME EXPIRES TO
                                                  FILE MOTION FOR REHEARING AND
                                                  DISPOSITION THEREOF IF FILED


JAMIDO PINEIROCABAN,

             Appellant/Cross-Appellee,

 v.                                                      Case No. 5D16-2342

STATE OF FLORIDA,

             Appellee/Cross-Appellant.

________________________________/

Opinion filed June 2, 2017

Appeal from the Circuit Court
for Orange County,
Robert J. Egan, Judge.

James S. Purdy, Public Defender,
and George D. E. Burden, Assistant
Public Defender, Daytona Beach, for
Appellant/Cross-Appellee.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Rebecca Rock
McGuigan, Assistant Attorney General,
Daytona Beach, for Appellee/
Cross-Appellant.


PER CURIAM.

      Jamido Pineirocaban appeals his convictions, following a jury trial, for trafficking in

cocaine in the amount of 200 grams or more, but less than 400 grams, and for importing

cocaine. Pineirocaban was sentenced to serve concurrent seven-year prison terms. The
State cross-appeals the sentence for trafficking in cocaine, contending that the trial court

erred as a matter of law by failing to sentence Pineirocaban to serve a mandatory

minimum prison term. We affirm Pineirocaban’s convictions without further discussion.

For the following reasons, we reverse Pineirocaban’s sentence for trafficking in cocaine

and remand for resentencing.

       Pineirocaban was charged with violating section 893.135(1)(b)1.b., Florida

Statutes (2015), by knowingly possessing, selling, purchasing, manufacturing, delivering,

or bringing into the State of Florida 200 grams or more of cocaine or a mixture containing

cocaine. This statute provides that a person convicted of trafficking in cocaine where the

amount involved “[i]s 200 grams or more, but less than 400 grams, . . . shall be sentenced

to a mandatory minimum term of imprisonment of 7 years . . . .” § 893.135(1)(b)1.b., Fla.

Stat. (2015). When a defendant is convicted of violating a statute that mandates the

imposition of a mandatory minimum term of imprisonment, the sentencing enhancement

is nondiscretionary and “trial courts lack the authority to refuse to apply them.” State v.

Mease, 200 So. 3d 161, 162 (Fla. 5th DCA 2016) (quoting State v. Kremer, 114 So. 3d

420, 421 (Fla. 5th DCA 2013)). Our review of the legality of the sentence is de novo.

Pinkard v. State, 185 So. 3d 1289, 1289–90 (Fla. 5th DCA 2016) (“The legality of a

sentence is a question of law and is subject to de novo review.” (quoting Flowers v. State,

899 So. 2d 1257, 1259 (Fla. 4th DCA 2005))).

       Pineirocaban acknowledges that he was charged with trafficking in cocaine in the

amount of 200 grams or more, but less than 400 grams, and that, if convicted as charged,

he faced a mandatory minimum seven-year prison sentence. Pineirocaban argues,

however, that because the jury made no separate, “clear finding” in its verdict that the




                                             2
amount of cocaine involved in this case actually weighed 200 grams or more, the trial

court correctly refused to impose the statutorily required seven-year mandatory minimum

sentence. Under the specific facts of this case, we disagree.

       Although not explicitly argued by Pineirocaban, the United States Supreme Court

has determined that any fact that triggers a mandatory minimum sentence is an element

of the offense that must be submitted to the jury and proved beyond a reasonable doubt.

Alleyne v. United States, 133 S. Ct. 2151, 2163 (2013). Pineirocaban correctly relates

that the verdict form provided to the jury on this count only asked it to decide whether he

was guilty or not guilty of the charge of trafficking in cocaine. There were no lesser

included offenses for the jury to consider on the verdict form or in its deliberations, nor

was the jury separately tasked with determining the weight of the cocaine on the verdict

form if it found Pineirocaban guilty of trafficking. Moreover, at the charge conference, the

parties agreed that the trial court would instruct the jury that in order to find Pineirocaban

guilty of trafficking in cocaine, it must find that the State proved the following three

elements beyond a reasonable doubt:

               1. JAMIDO PINEIROCABAN knowingly possessed a certain
               substance.

               2. The substance was cocaine.

               3. The cocaine weighed 200 grams or more.

       The better practice here would have been for the verdict form to have specifically

provided the jury with the options of either finding Pineirocaban guilty of trafficking in

cocaine in the amount of 200 grams or more, as charged in the information, or finding him

not guilty. Nevertheless, under the facts of this case, by its verdict of guilty, it is clear that

the jury found that the State proved beyond a reasonable doubt that Pineirocaban



                                                3
knowingly possessed 200 grams or more of cocaine. Stated differently, because the jury

was instructed that the specific “200 grams or more” weight of cocaine was the third

element of the crime that must be proved beyond a reasonable doubt, and there were no

lesser included offenses of trafficking in cocaine in smaller amounts for the jury to

consider in its deliberations,1 we conclude that the requirement under Alleyne of the jury

making a factual finding as a prerequisite to the imposition of a mandatory minimum

prison sentence was met. Thus, we hold that the trial court erred in failing to sentence

Pineirocaban to the statutorily mandated seven-year mandatory minimum prison

sentence.

      Accordingly, we reverse Pineirocaban’s present seven-year non-mandatory

minimum prison sentence for trafficking in cocaine and remand with directions that the

trial court sentence Pineirocaban to serve a seven-year mandatory minimum term for this

conviction.   Because the imposition of this sentence in this case is ministerial,

Pineirocaban need not be present for the resentencing. We affirm on all other issues.

      AFFIRMED in part; REVERSED in part; and REMANDED, with directions.

COHEN, C.J., TORPY and LAMBERT, JJ., concur.




      1 Trafficking offenses involving lower quantities of cocaine are category one lesser
included offenses to the instant charge. See Fla. Std. Jury Inst. (Crim.) 25.10.


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