       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                            ROGYNE O’NEAL,
                               Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D19-472

                             [June 17, 2020]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Laura Johnson, Judge; L.T. Case No. 01CF004304AMB.

  Carey Haughwout, Public Defender, and Benjamin Eisenberg, Assistant
Public Defender, West Palm Beach, for appellant.

   Ashley Moody, Attorney General, Tallahassee, and Heidi Bettendorf,
Assistant Attorney General, West Palm Beach, for appellee.

GERBER, J.

    The defendant appeals from the circuit court’s order resentencing him
to a mandatory minimum forty years in prison under section
775.082(1)(b)1., Florida Statutes (2018), for first degree murder with a
firearm, and a concurrent forty years in prison for robbery with a firearm.
The defendant argues the circuit court erred in resentencing him under
section 775.082(1)(b)1. on the first degree murder conviction for two
reasons: (1) the jury never specifically found he killed, attempted to kill,
or intended to kill the victim, and (2) due to conflicting evidence about
whether he or the other robber was the shooter, the record does not
demonstrate beyond a reasonable doubt that a rational jury would have
found the defendant actually killed, intended to kill, or attempted to kill
the victim. The defendant further argues that because the circuit court
may have based the robbery conviction’s forty-year sentence on the first
degree murder conviction’s mandatory minimum forty-year sentence, he
is entitled to another resentencing on the robbery conviction as well.

   We agree with both of the defendant’s arguments. Therefore, we reverse
the defendant’s sentences on both counts, and remand for resentencing.
                           Procedural History

    In 2001, the defendant, then seventeen years old, was indicted on one
count of first degree murder with a firearm and one count of robbery with
a firearm. The first degree murder indictment alleged:

      [O]n or about or between the March 20, 2001 and March 21,
      2001, [the defendant] did unlawfully from a premeditated
      design to effect the death of a human being, kill and murder
      [the victim], a human being, by shooting him, and in the
      commission of said offense did use and have in his possession
      a handgun, a firearm as defined in Florida Statute 790.001(6),
      contrary to Florida Statute 782.04(1)(a)1 and 2,
      775.087(1),(2), and 777.011. (CAPITAL FEL)

    On the night of the incident, the victim’s cousin told police that he and
the victim were walking down the street when two men came up from
behind to rob them. The shorter of the two men had a gun, and the taller
of the two men stole the victim’s jewelry. After the men took the jewelry
and began walking away, the victim yelled at the men. According to the
victim’s cousin, the shorter man with the gun turned and approached the
victim. At that point, the victim’s cousin jumped over a nearby wall, heard
gunshots, and called 911. The victim’s cousin returned to the scene and
found the victim shot to death.

   The police later developed the defendant as a suspect, and showed the
victim’s cousin a photo array which included the defendant’s photo. The
victim’s cousin identified the defendant as the shooter.

   After the police arrested the defendant, he admitted he was one of the
robbers, but said the other robber was the shooter. The police then
arrested the other robber, and showed the victim’s cousin a second photo
array which included the other robber’s photo. The victim’s cousin said
the other robber looked like the man who took the victim’s jewelry, but he
could not be absolutely positive.

   At some point during the investigation, however, the police noted a
contradiction between the victim’s cousin’s statement from the night of the
incident, identifying the shorter man as the shooter, and his later photo
identifications of the two men, when he identified the defendant as the
shooter. The defendant was the taller 6’1” while the other robber was the
shorter 5’9”.


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    At the close of evidence, the trial court granted the state’s request to
instruct the jury that, on the first degree murder with a firearm count, the
defendant could be found guilty in one of two ways: if the state had proven
“[the defendant] was the person who actually killed [the victim] or [the
victim] was killed by a person other than [the defendant] but both [the
defendant] and the person who killed [the victim] were principals in the
commission of robbery with a firearm or robbery.” (emphasis added).

    On the first degree murder with a firearm count, the verdict form asked
the jury by a “yes” or “no” question if the defendant was guilty of “first
degree murder (firearm), as charged in the indictment.” (emphasis added).
The jury checked “yes.” However, the verdict form did not ask the jury, if
it answered “yes” to the first question, whether “[the defendant] was the
person who actually killed [the victim] or [the victim] was killed by a person
other than [the defendant] but both [the defendant] and the person who
killed [the victim] were principals in the commission of robbery with a
firearm or robbery.” (emphasis added).

    On the robbery with a firearm count, the verdict form asked the jury by
a “yes” or no” question if the defendant was guilty of robbery with a firearm.
The jury checked “yes.” Under that count, the jury also checked “yes” to
a special interrogatory stating: “We find that as a result of the discharge
of the firearm by [the Defendant] … death or great bodily harm was
inflicted on a human being [the victim].”

   The circuit court sentenced the defendant to life imprisonment with no
possibility of parole.

    Years later, the defendant filed a motion for resentencing pursuant to
Graham v. Florida, 560 U.S. 48 (2010), and Miller v. Alabama, 567 U.S.
460 (2012), which held mandatory life-without-parole sentences for
juveniles violate the Eighth Amendment. The defendant argued he was
entitled to resentencing on the first degree murder with a firearm
conviction under section 775.082(1)(b)2., Florida Statutes (2018), which
does not require a mandatory minimum sentence and provides for
sentence review after fifteen years. The defendant argued he should not
be resentenced under section 775.082(1)(b)1., Florida Statutes (2018),
requiring a forty-year mandatory minimum sentence and providing for
sentence review after twenty-five years, because the jury never found,
under the first degree murder with a firearm conviction, that he “actually
killed, attempted to kill, or intended to kill the victim” as section
775.082(1)(b)1. requires.



                                      3
   In response, the state argued the defendant should be resentenced
under section 775.082(1)(b)1. because, on the robbery with a firearm
conviction, the jury checked “yes” to the special interrogatory: “We find
that as a result of the discharge of the firearm by [the defendant] . . . death
or great bodily harm was inflicted on a human being [the victim].”

    In reply, the defendant argued the state could not rely on the robbery
with a firearm conviction’s special interrogatory verdict because, pursuant
to State v. McKinnon, 540 So. 2d 111, 113 (Fla. 1989), receded from on
other grounds by State v. Roberts, 661 So. 2d 821 (Fla. 1995), “Conviction
on one count in an information may not be used to enhance punishment
for a conviction on another count.”

   After a hearing, the circuit court (a successor judge) denied the
defendant’s motion to be resentenced under section 775.082(1)(b)2., and
instead found the defendant should be resentenced under section
775.082(1)(b)1. The circuit court reasoned, in pertinent part:

          Count One clearly delineates that count as First Degree
      Murder with a Firearm. The Indictment charges firearm
      possession … and the Jury’s response to the interrogatory
      question in Count Two re-enforces the Jury’s finding that the
      Defendant discharged the firearm and caused the death of [the
      victim]. The finding is consistent with all the testimony and
      all the evidence in this case, and I find that any other finding
      just wouldn’t make sense in this case.

   The circuit court then sentenced the defendant on the first degree
murder with a firearm conviction to the mandatory minimum forty years
in prison with sentence review after twenty-five years. On the robbery with
a firearm conviction, the circuit court sentenced the defendant to a
concurrent forty years in prison with a ten-year mandatory minimum
under the 10-20-Life statute. (The trial court could not sentence the
defendant to the twenty-five year mandatory minimum on that conviction
because the indictment on that count had not alleged the defendant
discharged the firearm.)

                                This Appeal

   This appeal followed. The defendant argues the circuit court erred in
resentencing him under section 775.082(1)(b)1. on the first degree murder
conviction for two reasons: (1) the jury never specifically found he killed,
attempted to kill, or intended to kill the victim, and (2) due to conflicting
evidence about whether he or the other robber was the shooter, the record

                                      4
does not demonstrate beyond a reasonable doubt that a rational jury
would have found the defendant actually killed, intended to kill, or
attempted to kill the victim. The defendant further argues that because
the circuit court may have based the robbery conviction’s forty-year
sentence on the first degree murder conviction’s mandatory minimum
forty-year sentence, he is entitled to another resentencing on the robbery
conviction as well.

   Applying de novo review, we agree with the defendant’s arguments. See
Levandoski v. State, 217 So. 3d 215, 218 (Fla. 4th DCA 2017) (“Because a
sentencing error involves a pure issue of law, this court’s standard of
review is de novo.”).

   Section 775.082(1), Florida Statutes (2018), provides in pertinent part:

      (b)1. A person who actually killed, intended to kill, or
      attempted to kill the victim and who is convicted under s.
      782.04 of a capital felony, or an offense that was reclassified
      as a capital felony, which was committed before the person
      attained 18 years of age shall be punished by a term of
      imprisonment for life if, after a sentencing hearing conducted
      by the court in accordance with s. 921.1401, the court finds
      that life imprisonment is an appropriate sentence. If the court
      finds that life imprisonment is not an appropriate sentence,
      such person shall be punished by a term of imprisonment of at
      least 40 years.      A person sentenced pursuant to this
      subparagraph is entitled to a review of his or her sentence in
      accordance with s. 921.1402(2)(a).

      2. A person who did not actually kill, intend to kill, or attempt
      to kill the victim and who is convicted under s. 782.04 of a
      capital felony, or an offense that was reclassified as a capital
      felony, which was committed before the person attained 18
      years of age may be punished by a term of imprisonment for
      life or by a term of years equal to life if, after a sentencing
      hearing conducted by the court in accordance with s.
      921.1401, the court finds that life imprisonment is an
      appropriate sentence. A person who is sentenced to a term of
      imprisonment of more than 15 years is entitled to a review of
      his or her sentence in accordance with s. 921.1402(2)(c).

§ 775.082(1), Fla. Stat. (2018) (emphases added).        Section 921.1402,
Florida Statutes (2018), states, in pertinent part:


                                     5
      (2)(a) A juvenile offender sentenced under s. 775.082(1)(b)1.
      is entitled to a review of his or her sentence after 25 years.
      However, a juvenile offender is not entitled to review if he or
      she has previously been convicted of one of the following
      offenses … [not applicable here]

      ….

      (c) A juvenile offender sentenced to a term of more than 15
      years under s. 775.082(1)(b)2. … is entitled to a review of his
      or her sentence after 15 years.

§ 921.1402, Fla. Stat. (2018).

   These statutes’ Sixth Amendment implications were recently examined
in Williams v. State, 242 So. 3d 280 (Fla. 2018). There, a jury convicted
the juvenile defendant of first degree murder and kidnapping, but the
verdict form did not specify whether the murder conviction was for
premeditated murder or felony murder. Id. at 283. During a resentencing,
the trial court denied the defendant’s request to impanel a jury to make
the finding as to whether he actually killed, intended to kill, or attempted
to kill the victim. Id. at 285. Rather, the trial court held its own hearing
and found that the defendant both actually killed and intended to kill the
victim. Id.

    On appeal, our supreme court held Alleyne v. United States, 570 U.S.
99 (2013), requires a jury to make the factual finding that a defendant
“actually killed, intended to kill, or attempted to kill the victim” under
section 775.082(1)(b)1. Williams, 242 So. 3d at 286-89. Without such a
finding, “the trial court is not required to impose a minimum sentence”
and the defendant is entitled to a sentence review in fifteen years rather
than twenty-five years. Id. at 288. Thus, “a finding of actual killing, intent
to kill, or attempt to kill aggravates the legally prescribed range of
allowable sentences … by increasing the sentencing floor from zero to forty
years and lengthening the time before which a juvenile is entitled to a
sentence review from fifteen to twenty-five years.” Id. (internal citation and
quotation marks omitted).

    However, the Williams court also held an Alleyne error can be harmless.
Id. at 289. As the court explained:

      [T]he applicable question in evaluating whether an Alleyne
      violation is harmful with respect to section 775.082(1)(b) is
      whether the failure to have the jury make the finding as to

                                      6
      whether a juvenile offender actually killed, intended to kill, or
      attempted to kill the victim contributed to his sentence –
      stated differently, whether the record demonstrates beyond a
      reasonable doubt that a rational jury would have found the
      juvenile offender actually killed, intended to kill, or attempted
      to kill the victim.

Id. at 290 (emphasis added). Applying those holdings to the facts, the
Williams court found the error was not harmless because the defendant
“disputed both that he killed [the victim] and that he was a willing
participant in the murder.” Id. at 291.

    Williams favors the defendant’s arguments here. We acknowledge, as
the circuit court recognized, the jury found the defendant guilty of “first
degree murder (firearm), as charged in the indictment” (emphasis added),
and the indictment alleged the defendant shot the victim. However, the
trial court’s ultimate jury instruction and verdict form did not limit the
jury to the indictment’s allegation that the defendant shot the victim.
Instead, the trial court granted the state’s request to instruct the jury that,
on the first degree murder with a firearm count, the defendant could be
found guilty in one of two ways: if the state had proven “[the defendant]
was the person who actually killed [the victim] or [the victim] was killed by
a person other than [the defendant] but both [the defendant] and the
person who killed [the victim] were principals in the commission of robbery
with a firearm or robbery.” (emphasis added). Further, the verdict form
did not ask the jury to choose between those two options. Thus, the jury
did not specifically find the defendant “actually killed, intended to kill, or
attempted to kill” the victim. See Bienaime v. State, 213 So. 3d 927, 929
(Fla. 4th DCA 2017) (“To pursue an enhanced mandatory sentence … the
state must allege the grounds for enhancement in the charging document,
and the jury must make factual findings regarding those grounds.”)
(emphasis added).

   We also note the defendant, at trial, argued reasonable doubt existed
as to whether he or the other robber actually fired the gun, relying on the
victim’s cousin’s contradictory identification of the shorter man as the
shooter on the night of the incident, but later identifying the defendant
(the taller man) as the shooter from the photo arrays. Having reviewed the
record as to that argument, we cannot say beyond a reasonable doubt that
a rational jury would have found the defendant “actually killed, intended
to kill, or attempted to kill” the victim, as section 775.082(1)(b)1. and
Williams require.



                                      7
   Our conclusion is not affected by the jury having specifically found, on
the robbery with a firearm conviction, that “as a result of the discharge of
the firearm by the Defendant . . . death or great bodily harm was inflicted
on [the victim].” We are required to follow our supreme court’s holding in
McKinnon that “[c]onviction on one count in an information may not be
used to enhance punishment for a conviction on another count.” 540 So.
2d at 113.

   Based on the foregoing, the circuit court erred in relying on the first
degree murder indictment and the robbery count’s special interrogatory
verdict to determine the jury found, or a rational jury would have found,
the defendant “actually killed, intended to kill, or attempted to kill” the
victim. This error was not harmless, as it required the circuit court to
impose a forty-year mandatory minimum sentence, and lengthened the
time of sentencing review from fifteen to twenty-five years under section
921.1402(2)(a).

   Therefore, as required by our supreme court in Williams, we must
reverse the circuit court’s sentence on the first degree murder conviction
under section 775.082(1)(b)1., and remand for resentencing on the first
degree murder conviction under section 775.082(1)(b)2. See Williams, 242
So. 3d at 292-93 (“[R]esentencing [under section 775.082(1)(b)2.] is the
appropriate remedy for an Alleyne violation that is not harmless.”).

   We also must reverse the circuit court’s concurrent forty-year sentence
on the robbery with a firearm conviction, and remand for resentencing.
The robbery with a firearm conviction carries only a ten-year mandatory
minimum under the 10-20-Life Statute, and nothing in the record
conclusively shows the circuit court would have sentenced the defendant
to a concurrent forty years on the robbery conviction but for its belief a
forty-year mandatory minimum sentence was required on the first degree
murder conviction.

    We note the preservation grounds upon which the state sought
affirmance lack merit, without further discussion. We also note the other
argument upon which the defendant sought reversal is moot, without
further discussion.

   Reversed and remanded for resentencing consistent with this opinion.

GROSS and FORST, JJ., concur.

                           *         *         *


                                     8
Not final until disposition of timely filed motion for rehearing.




                               9
