CHARLES BELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a defendant should not be procedurally barred from relief on a motion to correct an illegal sentence when applying the bar would result in manifest injustice due to conflicting precedent.
[1] A defendant is entitled to relief from an illegal sentence when applying a procedural bar would result in a manifest injustice.
[2] A charging document alleging possession, use, or attempted use of a firearm in the commission of a felony is sufficient to support a mandatory minimum sentence for discha…
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Join FLexlaw to unlock all legal intelligenceBell was convicted of attempted second-degree murder with a firearm and sentenced to a mandatory minimum based on discharging the firearm. The chargin…
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PER CURIAM.
Charles Bell appeals the denial of his motion to correct an illegal sentence under Florida Rule of Criminal Procedure 3.800(a). We reverse and remand to the circuit court for resentencing.
Bell was charged with, attempted first degree murder. The information alleged that Bell attempted to kill Clifford Wheeler, “and in the course of the commission of the attempted murder possessed, used, or attempted to use a firearm in violation of Florida Statute 775.087, 782.04(l)(a) and 777.04.”
A jury found Bell guilty of the lesser offense of attempted second degree murder with a firearm. The jury also found that Bell had discharged the firearm. Because of this last finding, the trial judge sentenced Bell to a mandatory minimum period of twenty years consistent with section 775.087(2)(a)2., Florida Statutes (2002).
In his motion, Bell argued that he should not have received the twenty-year mandatory minimum sentence, in that the information did not allege that he “discharged” the firearm. Bell raised this issue in his direct appeal. This court affirmed the conviction and sentence without opinion. See Bell v. State, 834 So. 2d 177 (Fla. 4th DCA 2002). Eight days later, we decided Altieri v. State, 835 So. 2d 1181 (Fla. 4th DCA 2002), which is directly on point. Applying a procedural bar to deny Bell relief would work a manifest injustice, in that two cases presenting the identical sentencing issue were decided differently by the same court within days of each other. In State v. McBride, 848 So. 2d 287 (Fla.2003), the supreme court determined that a successive rule 3.800(a) motion should not be barred, based on collateral estoppel, when invoking that principle “would result in a manifest injustice.” Id. at 292.
Based on Altieri, we reverse the mandatory minimum sentence and remand to the trial court for resentencing under section 775.087(2)(a)l. The jury’s finding that Bell discharged a firearm satisfies the requirement that he “possessed” it within the meaning of section 775.087(2)(a)l., a factor contained in the charging document.
KLEIN, GROSS and HAZOURI, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Driggers v. State, 917 So. 2d 329 (Fla. 5th DCA 2005)…datory minimum of twenty years. The jury’s finding that he discharged a firearm during the course of the aggravated assault did not cure the defect in the information.”); see also Whitehead v. State, 884 So. 2d 139 (Fla. 2d DCA 2004); Bell v. State, 876 So. 2d 712 (Fla. 4th DCA 2004). We affirm Driggers’ conviction for aggravated battery, but reverse the sentence imposed for that offense and remand for resentencing consistent with this opinion. We affirm Driggers’ conviction for manslaughter with a firearm a…
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Thaddeus Simms v. State, 949 So. 2d 373 (Fla. 4th DCA 2007)…(a)2 and 775.087(2). (2 DEG FEL) (Emphasis added.) When it can be determined from the face of the record that the firearm minimum mandatory could not legally be imposed, its imposition may be corrected by a rule 3.800(a) motion. See Bell v. State, 876 So. 2d 712 (Fla. 4th DCA 2004); Mobley v. State, 989 So. 2d 213 (Fla. 1st DCA 2006); Adams v. State, 916 So. 2d 36 (Fla. 2d DCA 2005); Whitehead v. State, 884 So. 2d 139 (Fla. 2d DCA 2004). We find there was no merit to Defendant’s argument as it pertains to…
Authorities Cited
- State v. Antoine L. McBRIDE, 848 So. 2d 287 (Fla. 2003)
- Altieri v. State, 835 So. 2d 1181 (Fla. 4th DCA 2002)