ENNIS LEONARD ROGERS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Ennis Leonard Rogers was convicted of aggravated battery with a firearm. The Florida District Court of Appeal affirmed his conviction but reversed his sentence because the information charged only the "use" of a firearm, not its "discharge," which is required for the enhanced sentence under Florida Statute § 775.087(2)(a)(3).
The trial court erred in enhancing Rogers' sentence. The grounds for sentence enhancement must be charged in the information, and an allegation of "use" of a firearm is insufficient to sustain enhancement under section 775.087(2)(a)(3), which requires that the firearm be discharged. The trial court's finding of discharge and the inclusion of the statute number in the information do not cure the defect.
[1] A defendant's sentence may be enhanced under Florida Statute section 775.087(2)(a)(3) only if the information alleges that the defendant discharged a firearm during the c…
[2] An allegation of "use" of a firearm in an information is insufficient to support an enhanced sentence under Florida Statute section 775.087(2)(a)(3).
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The grounds for enhancement of a sentence must be charged in the information.”
Establishes the fundamental requirement that sentence enhancements must be properly alleged in the charging document
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Join FLexlaw to unlock all legal intelligenceRogers was charged with aggravated battery on Tony Peterson, Jr. involving the use of a firearm. After a bench trial, the trial court found Rogers gui…
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FULMER, Judge.
Ennis Leonard Rogers challenges his conviction and sentence for aggravated battery. We affirm Rogers’ conviction without discussion, but reverse Rogers’ sentence and remand for resentencing.
Rogers was charged by information that alleged:
On or about June 14, 2002 in Lee County, Florida, [Rogers] did unlawfully commit a battery upon Tony Peterson, Jr., by actually and intentionally touching or striking said person against said person’s will or by intentionally causing bodily harm to said person, and in committing said battery, did intentionally or knowingly cause great bodily harm, permanent disability, or permanent disfigurement to the said Tony Peterson, Jr., or did use a deadly weapon, to wit: a firearm, contrary to Florida Statute 784.045; 775.087(2)(a)(3)....
(Emphasis added.)
After a bench trial, the trial court announced the following verdict:
The court finds the defendant, Ennis Rogers, guilty as charged of Aggravated Battery With a Firearm or Causing Great Bodily Harm.
The court further finds that during the commission of this offense the defendant, Ennis Rogers, possessed a firearm and discharged the firearm and as a result of the discharge, great bodily harm was inflicted upon a person Tony Peterson.
(Emphasis added.)
Rogers was sentenced to life imprisonment pursuant to section 775.087(2)(a)(3), Florida Statutes (2001), which provides for an enhanced sentence when a person discharges a firearm during the commission of an enumerated felony and thereby inflicts serious bodily harm. The State concedes that the trial court erred by enhancing Rogers’ sentence because the information alleged that Rogers “did use” a firearm but it did not allege that he “discharged” the firearm.
The grounds for enhancement of a sentence must be charged in the information. See Jackson v. State, 852 So. 2d 941, 944 (Fla. 4th DCA 2003), review denied, 869 So. 2d 540 (Fla.2004). An allegation of “use” of a firearm will not sustain an enhanced sentence under section 775.087(2)(a)(3), because a firearm may be used to inflict serious bodily injury without being discharged, and the statute requires that the weapon be discharged for the enhancement to apply. See Altieri v. State, 835 So. 2d 1181, 1183 (Fla. 4th DCA 2002). Furthermore, neither the trial court’s finding that Rogers discharged the firearm nor the inclusion of the statute number in the information cures the defect in the information. See id.; Koch v. State, 874 So. 2d 606 (Fla. 5th DCA 2004).
Accordingly, we affirm Rogers’ conviction, reverse the sentence, and remand for resentencing.
COVINGTON and WALLACE, JJ„ Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Davis v. State, 884 So. 2d 1058 (Fla. 2d DCA 2004)…er, the minimum terms mandated by the “10-20-Life” statute, section 775.087(2), cannot be legally imposed unless the statutory elements are precisely charged in the information. Whitehead v. State, 884 So. 2d 139 (Fla. 2d DCA 2004); Rogers v. State, 875 So. 2d 769 (Fla. 2d DCA 2004). In Altieri, 835 So. 2d at 1183, the Fourth District explained the rationale as follows: Here, the information contained an allegation that appellant “used a deadly weapon, to wit: a firearm” but it did not contain an allegation…
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Whitehead v. State, 884 So. 2d 139 (Fla. 2d DCA 2004)…e information only charged the use of a firearm, but the court enhanced Whitehead’s sentence for discharging a firearm under section 775.087(2)(a)(2). The grounds for enhancement of a sentence must be charged in the information. See Rogers v. State, 875 So. 2d 769 (Fla. 2d DCA 2004); Altieri v. State, 835 So. 2d 1181 (Fla. 4th DCA 2002). A firearm may be used without being discharged; therefore, an allegation of “use” will not sustain an enhancement for discharging a firearm under 775.087(2)(a)(2). See Rogers…1 / 2
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Daniel v. State, 935 So. 2d 1240 (Fla. 2d DCA 2006)…el discharged the firearm and that death or great bodily harm resulted. See Adams v. State, 916 So. 2d 36, 37 (Fla. 2d DCA 2005); Davis v. State, 884 So. 2d 1058, 1060-61 (Fla. 2d DCA 2004), review denied, 900 So. 2d 552 (Fla.2005); Rogers v. State, 875 So. 2d 769, 771 (Fla. 2d DCA 2004); Altieri v. State, 835 So. 2d 1181, 1183 (Fla. 4th DCA 2002). “Neither a jury finding nor inclusion of the appropriate statute number in the information can cure this fatal defect.” Davis, 884 So. 2d at 1061. Thus, we reverse…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Altieri v. State, 835 So. 2d 1181 (Fla. 4th DCA 2002)
- Sheron Jackson v. State, 852 So. 2d 941 (Fla. 4th DCA 2003)
- Koch v. State, 874 So. 2d 606 (Fla. 5th DCA 2004)