TIMOTHY WHITEHEAD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Whitehead appeals the denial of his Rule 3.800(a) motion to correct an illegal sentence. The court reverses and remands because the information charged only use of a firearm but the trial court imposed an enhancement for discharging a firearm, which requires separate charging.
An illegal sentence enhancement imposed without charging the grounds for enhancement in the information may be corrected at any time under Rule 3.800(a). The court reversed and remanded, requiring the trial court to strike the 20-year minimum mandatory sentence and impose instead the 10-year minimum mandatory sentence for use of a firearm under section 775.087(2)(a)(1).
[1] A sentence enhancement based on the discharge of a firearm must be charged in the information.
[2] An allegation of firearm "use" in an information is insufficient to support a sentence enhancement for firearm "discharge."
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Join FLexlaw to unlock all legal intelligence“The grounds for enhancement of a sentence must be charged in the information.”
Establishes the core legal requirement that sentence enhancements require charging in the information
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Join FLexlaw to unlock all legal intelligenceOn March 6, 2002, a jury convicted Whitehead of aggravated battery with a deadly weapon and specifically found he used and discharged a firearm. The t…
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STRINGER, Judge.
Timothy Whitehead appeals the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm the trial court’s denial of three claims, but we reverse and remand for the trial court to correct an illegal sentence pursuant to a claim that Whitehead inartfully attempted to raise in his motion and that is apparent from the face of the record but that the trial court failed to address.
On March 6, 2002, a jury convicted Whitehead of aggravated battery with a deadly weapon, and the jury specifically found that Whitehead used and discharged a firearm. The trial court imposed a minimum mandatory sentence of twenty years in prison pursuant to section 775.087(2)(a)(2), Florida Statutes (1999).
The amended information attached to his rule 3.800(a) motion indicates that the information did not charge that Whitehead discharged a firearm. The 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, 875 So. 2d 769. Furthermore, neither the jury’s finding that the firearm was discharged nor the inclusion of the statute number in the information cures the defect in the information. See id.
Because the information did not charge the grounds for enhancement, Whitehead’s minimum mandatory sentence is illegal and may be corrected at any time under rule 3.800(a). See Leath v. State, 805 So. 2d 956 (Fla. 2d DCA 2001). Accordingly, we reverse and remand for the trial court to resentence Whitehead under the Criminal Punishment Code. The trial court shall strike the twenty-year minimum mandatory sentence, but it shall impose the ten-year minimum mandatory sentence for use of a firearm pursuant to section 775.087(2)(a)(1).
Affirmed in part, reversed in part, and remanded.
COVINGTON and CANADY, JJ., concur.
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Cited By (13 total)
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Davis v. State, 884 So. 2d 1058 (Fla. 2d DCA 2004)…g the commission of certain enumerated crimes. However, 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 w…
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Figueroa v. State, 84 So. 3d 1158 (Fla. 2d DCA 2012)…error); McKenzie v. State, 31 So. 3d 275, 276 (Fla. 2d DCA 2010); Freudenberger v. State, 940 So. 2d 551, 554-55 (Fla. 2d DCA 2006) (discussing the need for precision in the charging document in cases involving section 775.087); Whitehead v. State, 884 So. 2d 139, 140 (Fla. 2d DCA 2004); Helmick v. State, 569 So. 2d 869, 870 (Fla. 2d DCA 1990); Inmon v. State, 932 So. 2d 518, 519 (Fla. 4th DCA 2006); Altieri v. State, 835 So. 2d 1181, 1183 (Fla. 4th DCA 2002). Here, the State charged Figueroa with a violati…
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Driggers v. State, 917 So. 2d 329 (Fla. 5th DCA 2005)…eprived him of notice that he was subject to a mandatory 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 Drig…
Previewing 3 of 13 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)
- Leath v. State, 805 So. 2d 956 (Fla. 2d DCA 2001)
- Ennis Leonard Rogers v. State, 875 So. 2d 769 (Fla. 2d DCA 2004)