FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
from the Circuit Court for Orange County, Robert J. Egan,
S. Purdy, Public Defender, and George D. E. Burden, Assistant
Public Defender, Daytona Beach, for Appellant/Cross-Appellee.
Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock
McGuigan, Assistant Attorney General, Daytona Beach, for
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
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))).
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 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.
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
1. JAMIDO PINEIROCABAN knowingly possessed a certain
2. The substance was cocaine.
3. The cocaine weighed 200 grams or more.
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 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,
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.
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 ...