               NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
                      MOTION AND, IF FILED, DETERMINED


                                          IN THE DISTRICT COURT OF APPEAL
                                          OF FLORIDA
                                          SECOND DISTRICT



MARK AGENOR, DOC #H50722,        )
                                 )
           Appellant,            )
                                 )
v.                               )              Case No. 2D17-3759
                                 )
STATE OF FLORIDA,                )
                                 )
           Appellee.             )
________________________________ )

Opinion filed March 27, 2019.

Appeal from the Circuit Court for Polk
County; James A. Yancey, Judge.

Howard L. Dimmig, II, Public Defender,
and Timothy J. Ferreri, Assistant
Public Defender, Bartow, for Appellant.

Ashley Moody, Attorney General,
Tallahassee, and Jonathan P. Hurley,
Assistant Attorney General, Tampa, for
Appellee.


ROTHSTEIN-YOUAKIM, Judge.

             Mark Agenor appeals the judgments and sentences entered following his

nolo contendere pleas to ten charges in three different circuit court cases. Following

independent review of the record pursuant to Anders v. California, 386 U.S. 738 (1967),

we ordered supplemental briefing addressing whether the trial court erred in imposing
on six of those sentences a mandatory minimum term of ten years' imprisonment

pursuant to section 775.087(2)(a)(1), Florida Statutes (2015), for possessing a firearm

or destructive device. With the benefit of that briefing, we now reverse the mandatory

minimum provisions on those six sentences.

             In pertinent part, the State charged Agenor with three counts of robbery

with a deadly weapon, see § 812.13, Fla. Stat. (2015);1 one count of attempted robbery

with a deadly weapon, see §§ 812.13, 777.04, Fla. Stat. (2015); one count of burglary of

a conveyance with "an air pistol or BB gun, a dangerous weapon or explosive," see §

810.02, Fla. Stat. (2015); and one count of attempted burglary of a conveyance "with a

deadly weapon,"2 see §§ 810.02, 775.087, 777.04, Fla. Stat. (2015). Agenor pleaded

nolo contendere to those charges and to four other charges pursuant to a plea

agreement, but the parties did not agree to a particular sentence. At sentencing, the

trial court imposed ten-year mandatory minimum terms of imprisonment on the six

counts specified above pursuant to section 775.087(2)(a)(1), the "10/20/life" statute.

             As the State appropriately concedes, this was error. To pursue an

enhanced mandatory minimum sentence under the 10/20/life statute, "the [S]tate must

allege the grounds for enhancement in the charging document, and the jury must make

factual findings regarding those grounds." Bienaime v. State, 213 So. 3d 927, 929 (Fla.

4th DCA 2017) (citing Lane v. State, 996 So. 2d 226, 227 (Fla. 4th DCA 2008)). A ten-

year mandatory minimum sentence under that statute, therefore, requires that the State


             1The State only generally cited the applicable statutes and did not identify
the subsections on which it relied.
             2The
                burglary statute uses the term "dangerous weapon," not "deadly
weapon." See generally § 810.02.



                                           -2-
plead and prove beyond a reasonable doubt—or, in the case of a guilty or nolo

contendere plea, that the defendant stipulate—that the defendant actually possessed a

" 'firearm' or 'destructive device.' " § 775.087(2)(a)(1); see Murray v. State, 133 So. 3d

557, 558 (Fla. 1st DCA 2014) ("In the context of plea deals, 'the State is free to seek

judicial sentence enhancements so long as the defendant either stipulates to the

relevant facts or consents to judicial factfinding.' " (quoting Blakely v. Washington, 542

U.S. 296, 310 (2004))).

              The State, however, did not allege a firearm in connection with any of the

charges: it alleged a "deadly weapon" or "dangerous weapon," and although a firearm

may qualify as a deadly or dangerous weapon, not all deadly or dangerous weapons

are firearms. Cf. Reeder v. State, 399 So. 2d 445, 446 (Fla. 5th DCA 1981) ("The jury

could have found that an assault occurred and that the pistol or object used constituted

a deadly weapon but that the State failed to prove beyond a reasonable doubt that the

pistol met the statutory definition of a 'firearm.' "). In addition, although the attempted-

burglary-of-a-conveyance charge generally cited section 775.087, that general citation

was insufficient to notify Agenor of the potential applicability of section 775.087(2)(a)'s

ten-year mandatory minimum sentence to that charge or to any other charge.3 See

Bienaime, 213 So. 3d at 929-30 ("The [S]tate also cannot rely on grounds alleged in one

count to support an enhanced mandatory sentence on another count. Finally, if the

[S]tate wishes to give notice of an enhancement by reference to a statute in the

charging document, the [S]tate must refer to the specific subsection which subjects the



              3And,in fact, a defendant who possesses a firearm or destructive device
during the commission of a burglary of a conveyance is subject to a three-year, not a
ten-year, mandatory minimum sentence. See § 775.087(2)(a)(1).


                                             -3-
defendant to the enhanced sentence." (citation omitted) (first citing Bryant v. State, 744

So. 2d 1225, 1226 (Fla. 4th DCA 1999); then citing Inmon v. State, 932 So. 2d 518, 520

(Fla. 4th DCA 2006))).

              The only specific allegation of a weapon was included in the charge of

burglary of a conveyance with a dangerous weapon or explosive, and the weapon

alleged was "an air pistol or BB gun." There is no question that a BB gun can qualify as

a deadly or dangerous weapon4 supporting felony reclassification under section

775.087(1). See, e.g., Dale v. State, 703 So. 2d 1045, 1046-47 (Fla. 1997); Mitchell v.

State, 698 So. 2d 555, 558 (Fla. 2d DCA), approved, 703 So. 2d 1062 (Fla. 1997);

Santiago v. State, 900 So. 2d 710, 711 (Fla. 3d DCA 2005). But a BB gun cannot

qualify as a "firearm" for purposes of imposing a mandatory minimum sentence under

the 10/20/life statute. Coley v. State, 801 So. 2d 205, 206 (Fla. 2d DCA 2001) ("Mitchell

explicitly holds that a BB gun does not fit the definition of a firearm."). Thus, none of the

charges supported the trial court's imposition of ten-year mandatory minimum

sentences.

              Moreover, as part of his nolo contendere pleas, Agenor did not stipulate

either to his possession of a firearm or to the applicability of the 10/20/life statute.

Agenor's plea form included no factual basis for the pleas, and the provision

acknowledging the possibility of sentencing "as 10/20/L" is not checked off. Cf. Ibarra v.

State, 45 So. 3d 911, 912 (Fla. 4th DCA 2010) (rejecting Ibarra's challenge to the

firearm mandatory minimum based on his assertion that his offense had involved only a


              4We have recognized that "deadly" and "dangerous" are used
interchangeably in this context. See Mitchell v. State, 698 So. 2d 555, 560 & n.6 (Fla.
2d DCA 1997).



                                             -4-
BB gun because, among other things, "[t]he plea form that appellant signed advised him

that his plea would subject him to a ten-year mandatory minimum sentence"). At the

plea hearing, the court recited the charges consistently with the charges set forth in the

charging documents, which did not allege a "firearm"; did not inform Agenor of any

potential mandatory minimum sentence; and requested neither that the State proffer nor

that Agenor stipulate to any factual basis for the pleas, let alone a factual basis

establishing Agenor's possession of a firearm. Cf. id. ("The trial court advised appellant

during the plea colloquy that he would receive a ten-year mandatory minimum if the

court declined to sentence him as a youthful offender. Appellant did not object to the

factual basis recited by the State which alleged that appellant wielded a 'firearm' during

the offense."); Bradley v. State, 971 So. 2d 957, 959 (Fla. 5th DCA 2007) (rejecting

Bradley's challenge to the firearm mandatory minimum because he had "stipulat[ed] to

the facts alleged in the complaint affidavit (which stated that he had discharged a

firearm during the commission of the robbery)" when entering his plea), approved, 3 So.

3d 1168 (Fla. 2009). Moreover, we note that at the sentencing hearing, the parties and

the court were all in accord that the offenses had involved only BB guns, not firearms.

              Accordingly, we affirm the judgments of conviction on all ten offenses and

affirm four of Agenor's sentences, but we reverse the six sentences discussed herein to

the extent that we remand for the trial court to strike the ten-year mandatory minimum

terms of imprisonment on those six sentences.

              Affirmed in part; reversed in part; remanded.


NORTHCUTT and VILLANTI, JJ., Concur.




                                            -5-
