DONALD W. ADAMS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a sentence enhancement under section 775.087(2)(a)(3) is illegal if the information fails to allege the specific grounds for enhancement, such as the discharge of a firearm.
[1] A sentence enhancement under section 775.087(2)(a)(3), Florida Statutes, requires that the firearm be discharged, and an allegation of mere 'use' of a firearm is insuffic…
[2] Grounds for sentence enhancement must be charged in the information.
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Join FLexlaw to unlock all legal intelligenceDonald W. Adams was convicted of aggravated battery and sentenced to a minimum mandatory term of twenty-five years based on the jury's finding that he…
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[*37] CASANUEVA, Judge.
Donald W. Adams 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 one claim without comment but reverse and remand for the trial court to correct an illegal sentence pursuant to another claim that Adams unartfully raised in his motion.
On July 11, 2002, a jury convicted Adams of aggravated battery, and the jury specifically found that Adams’ use and discharge of a firearm caused the victim great bodily harm, permanent disability, or permanent disfigurement. The trial court sentenced Adams to a minimum mandatory term of twenty-five years’ imprisonment pursuant to section 775.087(2)(a)(3), Florida Statutes (2001).
The information failed to allege that Adams discharged a firearm. The information alleged only that Adams “used and actually possessed a firearm during the commission of the offense.” The trial court improperly enhanced Adams’ sentence for discharging a firearm under section 775.087(2)(a)(3), because the grounds for enhancement of a sentence must be charged in the information. Whitehead v. State, 884 So. 2d 139, 140 (Fla. 2d DCA 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.” Rogers v. State, 875 So. 2d 769, 771 (Fla. 2d DCA 2004) (citing Altieri v. State, 835 So. 2d 1181 (Fla. 4th DCA 2002)). Neither the jury’s finding that the firearm was discharged nor the inclusion of the statute number in the information cured the defect in the information. Whitehead, 884 So. 2d at 140.
Adams’ minimum mandatory sentence is illegal because the information did not include the grounds for enhancement. Accordingly, we reverse and remand for the trial court to resentence Adams in accordance with section 775.087(2)(a)(l).
Affirmed in part, reversed in part, and remanded.
SALCINES and VILLANTI, JJ., Concur.
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Citator
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Figueroa v. State, 84 So. 3d 1158 (Fla. 2d DCA 2012)…harged but the jury convicted the defendant of discharge of a firearm — a crime of the same degree but carrying a different minimum-mandatory term under section 775.087. See, e.g., McKenzie v. State, 31 So. 3d 275 (Fla. 2d DCA 2010); Adams v. State, 916 So. 2d 36 (Fla. 2d DCA 2005). Here, not only does the sentence change with the finding of use of a firearm, but the level of the offense changes, making Figueroa’s challenge to his sentence impossible to differentiate from a challenge to his conviction. See S…
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Daniel v. State, 935 So. 2d 1240 (Fla. 2d DCA 2006)…years. In order to subject Daniel to a twenty-five-year minimum mandatory under section 775.087(2)(a)(3), the State must allege in the information that Daniel 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). “Nei…
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Thaddeus Simms v. State, 949 So. 2d 373 (Fla. 4th DCA 2007)…d 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 the first count, in which he was charged with killing the victim by shooting him with a revolver. See Br…
Previewing 3 of 7 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)
- Whitehead v. State, 884 So. 2d 139 (Fla. 2d DCA 2004)
- Ennis Leonard Rogers v. State, 875 So. 2d 769 (Fla. 2d DCA 2004)