Sharmarkco Dontrayvious Evans v. State of Florida

D ISTRICT C OURT OF A PPEAL O F T HE STATE OF F LORIDA
FOURTH DISTRICT
SHARMARKCO DONTRAYVIOUS EVANS,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D2024-2867
[April 8, 2026]
Appeal from the Circuit Court for the Nineteenth Judicial Circuit, St.
Lucie 	County; 	Michael 	Carlton 	Heisey, 	Judge; 	L.T. 	Case 	No.
562023CF000167AXXXXX.
Daniel 	Eisinger, 	Public 	Defender, 	and 	Erika 	Elizabeth 	Follmer,
Assistant Public Defender, West Palm Beach, for appellant.
James Uthmeier, Attorney General, Tallahassee, and Pablo Ignacio
Tapia, Assistant Attorney General, West Palm Beach, for appellee.
F ORST , J.
Appellant Sharmarkco Evans appeals from his conviction and sentence
for 	violating 	section 	790.23(1), 	Florida 	Statutes 	(2022) 	(“Felon 	in
Possession of Firearm”). 	On appeal, Appellant challenges: (I) the trial
court’s denial of his motion for judgment of acquittal; (II) the sufficiency of
the trial court’s colloquy regarding his stipulation to prior convicted-felon
status; (III) the facial constitutionality of section 790.23(1) under the
Florida Constitution; (IV) the facial constitutionality of section 790.23(1)
under the United States Constitution; (V) the size of the jury; (VI) the trial
court’s imposition of a three-year mandatory minimum sentence; and (VII)
the trial court’s imposition of a $50 investigative cost.
We affirm on issue II without discussion.
We affirm on issue III. 	See Nelson v. State, 195 So. 2d 853 (Fla. 1967);
Simpson v. State, 368 So. 3d 513, 520–24 (Fla. 5th DCA 2023) (Pratt, J.,
concurring) (explaining why Nelson still governs the state constitutional
issue).

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We affirm on issue IV. 	See Paul v. State, 381 So. 3d 617 (Fla. 4th DCA
2024); Fleming v. State, 414 So. 3d 175 (Fla. 4th DCA 2025); Edenfield v.
State, 379 So. 3d 5, 9–10 (Fla. 1st DCA 2023), reh’g denied, 375 So. 3d
930 (Fla. 1st DCA 2023), rev. denied, No. SC2023-1106, 2023 WL 8710101
(Fla. Dec. 18, 2023).
We affirm on issue V. See Guzman v. State, 350 So. 3d 72, 73 (Fla. 4th
DCA 2022), rev. denied, No. SC2022-1597, 2023 WL 3830251 (Fla. June
6, 2023), cert. denied, 144 S. Ct. 2595 (2024).
For the reasons that follow, we affirm on issue I but reverse on issues
VI and VII.
Background
Appellant has a twin brother named Charmarkco Evans. 	A detective
was 	driving 	when 	he 	heard 	approximately 	ten 	gunshots 	from 	what
sounded like multiple types of guns. 	He reported this on his police radio
and drove toward the gunshots. 	He saw a man on a white bicycle at an
intersection wearing a gray hooded sweatshirt and black pants, whom he
recognized to be either Appellant or Appellant’s twin. 	The man pointed
and told the detective, “my homeboy got shot.” 	The detective immediately
left and found a teenager who had been shot on the street. 	With the
injured teenager was “the other twin,” wearing a black T-shirt and black
pants with a white design on one of the pant legs. 	The injured teenager
had been riding a green bike.
The detective watched footage from a surveillance camera overlooking
a nearby intersection, which was entered into evidence. Around the 14:00
mark, a car passed the intersection and a person (the teenager) fell down.
The video then showed a man on the sidewalk dismount from a white
bicycle and point what appears to be a gun at the fleeing car, at which
point brief flashes of light emerged from the apparent gun, consistent with
gunfire. 	As the gun fired, the man stood near a group of bushes with his
back to the street. 	The man then remounted the white bicycle and rode
toward 	the 	surveillance 	camera, 	revealing 	a 	dark 	gray 	hoodie. 	The
detective testified this was the same biker whom he had encountered
moments later.
The detective’s identification of Appellant at trial was inconsistent. The
detective first testified that the biker was “one of two twins, Sharmarkco
or Charmarkco Evans.” 	When the detective was asked whether he could
identify the biker in the courtroom, he pointed to Appellant at the defense

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table, describing his white shirt and saying, “he looks exactly like the
person that was on the bike. Like he’s a twin.” Later, he clarified that the
biker was “Sharmarkco Evans.” 	Asked to explain the inconsistency, the
detective said, “[h]e was later identified as Sharmarkco Evans.”
A crime scene investigator testified that three different types of bullet
casings were found at the scene. She testified no fingerprints or DNA were
found on the casings and she could not trace any specific round to a
particular person. 	However, her description of the location where she
found the lone .380 caliber shell is consistent with the bushes where the
shooter was standing when he fired his gun at 14:16 of the video.
A police sergeant testified that he watched the surveillance video and
determined 	that 	the 	man 	on 	the 	white 	bike 	with 	the 	gray 	sweater
“produced a firearm and fired.” 	The sergeant testified that he interviewed
Appellant 	two 	weeks 	after 	the 	shooting. 	The 	sergeant 	testified 	that
Appellant identified himself as “Don,” and that he understood “Don” to be
Sharmarkco Dontrayvious Evans. 	This interview was played for the jury.
In the interview, “Don” says: “When we get to the edge of the road that’s
where they were shooting. 	And I’m coming on the bike. 	So that’s when
my brother start running -- right to that road, the police jumped out on
me right there . . . .”
On 	cross-examination, 	defense 	counsel 	functionally 	conceded 	that
Appellant was the person whom the sergeant had interviewed by asking
questions including: “Your interview with Sharmarkco Evans didn’t take
place 	until 	the 	twenty-ninth?”; 	“[when 	you 	responded 	to 	interview
Sharmarkco, we just saw it on body cam . . . he was forthcoming?”; and
“he reported the gun fire, seeing fire and that his homeboy was in the street
. . . ?” 	The sergeant answered all these questions in the affirmative.
Defense counsel further asked, “[t]he only person that you specifically
interviewed in -- in this case was my client on the twenty-ninth then, is
that fair to say?” 	The sergeant said he also interviewed “the victim” and
then agreed, “[y]es, sir.” 	On redirect, when asked if he saw the person
whom he had interviewed on the twenty-ninth in the room, the sergeant
pointed to Appellant at the defense table and described his shirt.
After the State rested its case, Appellant moved for a judgment of
acquittal. 	His counsel argued: “[T]he state has not proven a prima facie
case or put on evidence to support a prima facie case for [felon in]
possession of a firearm specifically as to element two. 	We stipulated in
this trial to element one of that charge, being a convicted felon. 	However,
in the testimony presented not a single witness was able to positively ID
my client, Sharmarkco Evans, as the shooter . . . .”

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The trial court denied the motion, finding that the testimony by the
detective, the sergeant, and the crime scene investigator, together with the
bullet in the bushes, the surveillance video, and the interview, added up
to “enough evidence for the jury to make the determination as to who is
depicted . . . on the video firing a gun.”
The jury convicted Appellant of possession of firearm or ammunition by
a 	convicted 	felon. 	On 	a 	special 	interrogatory 	asking 	whether 	the
possession was of a firearm or ammunition, the jury checked both boxes.
The trial court sentenced Appellant to eight years incarceration with a
three-year mandatory minimum under section 775.087(2)(a)1., Florida
Statutes (2022), over Appellant’s objection to the mandatory minimum.
The trial court also imposed a $50 cost of investigation.
Appellant 	challenged 	the 	mandatory 	minimum 	and 	the 	cost 	of
investigation by a Florida Rule of Criminal Procedure 3.800(b)(2) motion.
The trial court did not rule on the motion within sixty days, and thus the
motion was deemed denied by operation of law. 	This appeal follows.
Analysis
The evidence was sufficient to sustain Appellant’s conviction.
“A de novo standard of review applies when reviewing a motion for
judgment of acquittal.” 	Santisteban v. State, 72 So. 3d 187, 194 (Fla. 4th
DCA 2011). 	“In moving for a judgment of acquittal, a defendant admits
the facts in evidence and every conclusion favorable to the state that may
be reasonably inferred from the evidence.” 	Id. 	“A court should grant a
motion for judgment of acquittal only if ‘the evidence is such that no view
which the jury may lawfully take of it favorable to the [State] can be
sustained under the law.’” 	Id. at 194–95 (quoting Lynch v. State, 293 So.
2d 44, 45 (Fla. 1974)).
Here, the trial court did not err in denying Appellant’s motion for
judgment of acquittal. 	While Appellant’s twin’s proximity to the crime
scene created some confusion and inconsistency in the identification
testimony, 	sufficient 	evidence 	existed 	for 	the 	jury 	to 	find 	beyond 	a
reasonable doubt that Appellant possessed the gun. The detective testified
that Appellant had approached him on a white bike and, after watching
the surveillance video, the detective determined the shooter was the biker
whom 	he 	had 	encountered. 	While 	the 	detective’s 	identification 	was
initially equivocal, he later testified the biker was Appellant. 	The man
interviewed by the sergeant stated that he was “coming on the bike” and

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“the police jumped out on [him] right there” on the road, corroborating the
detective’s testimony about the encounter. 	The sergeant testified that the
man whom he had interviewed was Appellant. 	Defense counsel’s cross-
examination questions conceded that Appellant was the interviewee. 	The
evidence was sufficient for a jury to find that the shooter, the biker, and
the interviewee were the same person and that Appellant was that person.
Accordingly, we affirm on issue I.
The trial court erred in imposing a mandatory minimum sentence
and a cost of investigation.
“The standard of review applicable to a trial court’s order on a motion
to correct sentencing error is de novo.” Pitts v. State, 202 So. 3d 882, 884
(Fla. 4th DCA 2016). 	As we have repeatedly explained, in order for the
three-year mandatory minimum sentence under Florida Statutes section
775.087(2)(a)1. to be imposed for possession of a firearm by a convicted
felon, the jury must make an express finding of actual possession. Rock v.
State, 392 So. 3d 791, 792 (Fla. 4th DCA 2024); State v. Collazo, 93 So. 3d
417, 418 (Fla. 4th DCA 2012); Banks v. State, 949 So. 2d 353, 355 (Fla.
4th DCA 2007).
Here, the jury did not make an express finding of actual possession.
The jury instructions included both actual and constructive theories of
possession. 	But the special interrogatory only asked the jury to specify
whether the possession was of a firearm or ammunition, not whether the
possession was actual or constructive. 	Thus, we reverse on issue VI and
remand for the trial court to strike Appellant’s mandatory minimum
sentence.
We review imposition of costs pursuant to statutes de novo. 	See
Richards v. State, 288 So. 3d 574, 575 (Fla. 2020). 	“Trial courts cannot
impose investigative costs ‘where the record does not demonstrate that the
State requested reimbursements for these costs.’ 	If these costs are not
requested by the State, they must be stricken and cannot be imposed on
remand.” 	Desrosiers v. State, 286 So. 3d 297, 300 (Fla. 4th DCA 2019)
(quoting Chambers v. State, 217 So. 3d 210, 214 (Fla. 4th DCA 2017)).
Here, the State properly concedes that the investigative costs must be
stricken because the State did not request those costs. 	We reverse on
issue 	VII 	and 	remand 	for 	the 	trial 	court 	to 	strike 	the 	$50 	cost 	of
investigation.

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Conclusion
As discussed above, we affirm on issues I–V and affirm Appellant’s
conviction; we reverse on issues VI and VII and remand for the trial court
to 	strike 	the 	three-year 	mandatory 	minimum 	and 	the 	$50 	cost 	of
investigation from Appellant’s sentence.
Affirmed in part; reversed and remanded in part with instructions.
KLINGENSMITH and S HEPHERD, JJ., concur.
* 	* 	*
Not final until disposition of timely-filed motion for rehearing.