HERMAN E. DUKES, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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[*776] PER CURIAM.
Herman E. Dukes presents a timely claim of ineffective assistance of appellate counsel. He asserts that his appellate counsel erred by failing to argue, as trial counsel did, that the imposition of a minimum sentence of 25 years’ imprisonment pursuant to section 775.087(2)(a)3., Florida Statutes (1999), was unlawful because the information failed to allege that his discharge of a firearm or destructive device during the course of the offense resulted in the infliction of great bodily harm or death. The state concedes that Dukes is entitled to relief on this claim, and we agree. See, e.g., Gibbs v. State, 623 So. 2d 551 (Fla. 4th DCA 1993); see also Jackson v. State, 852 So. 2d 941 (Fla. 4th DCA 2003). Accordingly, the petition alleging ineffective assistance of appellate counsel is granted, the sentence imposed upon Dukes is vacated, and the matter is remanded to the trial court for resentencing.
PETITION GRANTED.
ERVIN, DAVIS and BROWNING, JJ., concur.
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Davis v. State, 884 So. 2d 1058 (Fla. 2d DCA 2004)…is case be [*1061] cause the information did not charge death or great bodily harm. Neither a jury finding nor inclusion of the appropriate statute number in the information can cure this fatal defect. Id.; Rogers, 875 So. 2d at 771; Dukes v. State, 866 So. 2d 775, 776 (Fla. 1st DCA), review dismissed, 868 So. 2d 523 (Fla.2004). In light of the illegality of his sentence, Mr. Davis’s position is that on remand, the trial court may not impose a sentence exceeding fifteen years’ imprisonment, the statutory max…
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Authorities Cited
- Gibbs v. State, 623 So. 2d 551 (Fla. 4th DCA 1993)
- Sheron Jackson v. State, 852 So. 2d 941 (Fla. 4th DCA 2003)