ERNEST LEE PARKER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Ernest Lee Parker appealed the summary denial of his rule 3.850 postconviction motion challenging his mandatory minimum sentence for attempted second-degree murder. The appellate court reversed as to ground fifteen, holding that Florida law required a clear jury finding that Parker discharged a firearm before the trial court could impose the enhanced 25-year mandatory minimum sentence.
The court reversed the summary denial of ground fifteen of the postconviction motion, holding that Florida law required a clear jury finding that the defendant discharged a firearm before the trial court could enhance the sentence on that basis, and that this requirement existed even before Apprendi was decided.
[1] A defendant is entitled to postconviction relief when a mandatory minimum sentence enhancement is imposed without a jury finding that the firearm was discharged.
[2] Apprendi v. …
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Join FLexlaw to unlock all legal intelligence“even prior to Apprendi, Florida required a clear jury finding that the firearm was discharged before the court could enhance a sentence on that basis”
Establishes the core holding that firearm discharge findings must come from the jury, regardless of Apprendi retroactivity
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Join FLexlaw to unlock all legal intelligenceParker was charged with five counts including attempted first-degree murder with a firearm for shooting victim Rebecca Darmer Sharpe on May 7, 2000. P…
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PER CURIAM.
The defendant appeals an order summarily denying his motion for postconviction relief, filed pursuant to rule 3.850, Florida Rules of Criminal Procedure. We reverse only as to the fifteenth ground of his sixteen-ground motion and affirm in all other respects without discussion.
Defendant was charged with five counts, all occurring on May 7, 2000, the first of which was attempted first degree murder with a firearm. The information charged him with doing “an act toward the commission of such offense by shooting” the victim, Rebecca Darmer Sharpe. The victim testified that the defendant shot her. The defendant testified that he got into an argument with the victim and the gun accidentally went off when she was trying to grab it from him. The jury found him guilty of the lesser included offense of “Attempted 2nd Degree Murder With a Firearm (as to Rebecca Darmer Sharpe) a lesser included offense.” With respect to this count, the court sentenced the defendant to the minimum mandatory term of twenty-five years in prison, followed by fifteen years of probation. This court affirmed his conviction. State v. Parker, 812 So. 2d 495 (Fla. 4th DCA 2002).
In ground fifteen of his motion, the defendant challenged his twenty-five year mandatory minimum sentence for discharging a firearm, imposed pursuant to section 775.087(2)(a)3, Florida Statutes (2000). That section provides for enhanced sentencing of a person convicted of attempted murder, who discharges a firearm resulting in death or great bodily harm. The defendant argued that the lack of a jury finding that he discharged a firearm, prevented the trial court from enhancing his sentence. See Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). The defendant also cited Muldrow v. State, 842 So. 2d 240 (Fla. 2d DCA 2003). In Muldrow, the second district reversed a twenty-year mandatory minimum, recognizing that a jury finding of possession of a firearm did not equate to a finding that the firearm had been discharged.
The State responded that Apprendi and Blakely1 were not retroactive and did not apply to the defendant’s sentence. Apparently, the trial court agreed with the state and denied the motion. However, both the state and the trial court failed to note that Apprendi was decided prior to the defendant’s trial, thereby making retroactivity a non-issue.
In fact, even prior to Apprendi, Florida required a clear jury finding that the firearm was discharged before the court could enhance a sentence on that basis. See Tucker v. State, 726 So. 2d 768 (Fla.1999); State v. Hargrove, 694 So. 2d 729 (Fla.1997); State v. Tripp, 642 So. 2d 728 (Fla.1994); State v. Overfelt, 457 So. 2d 1385 (Fla.1984). See also Koch v. State, 874 So. 2d 606 (Fla. 5th DCA 2004).
Accordingly, we reverse the summary denial of the motion as to ground fifteen, either for the attachment of portions of the record refuting the claim or for the court to re-sentence the defendant for count I.
Affirmed in part; reversed in part, and remanded.
STEVENSON, C.J., TAYLOR and MAY, JJ., concur. . Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004).
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Solomon v. State, 254 So. 3d 1121 (Fla. 5th DCA 2018)…ress findings. See Allen v. State , 853 So. 2d 533, 535-37 (Fla. 5th DCA 2003) (affirming trial court's order entered under rule 3.800(a) correcting the length of the previously imposed minimum mandatory provision of the sentence); Parker v. State , 921 So. 2d 812, 812-13 (Fla. 4th DCA 2006) (reversing enhanced twenty-five-year minimum mandatory sentence imposed pursuant to section 775.087(2)(a) 3. absent a clear jury finding that a firearm was discharged); Muldrow v. State , 842 So. 2d 240, 242 (Fla. 2d DCA…
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Parker v. State, 977 So. 2d 671 (Fla. 4th DCA 2008)…rearm. Appellant appealed the trial court’s summary denial of the rule 3.850 motion to this court. We held that a clear jury finding that a firearm was discharged was required before the court could enhance a sentence on that basis. Parker v. State, 921 So. 2d 812, 813 (Fla. 4th DCA 2006). We reversed the summary denial of the motion and remanded for attachment of record portions refuting appellant’s claim or, alternatively, for re-sentencing on the attempted second degree murder with a firearm count. Id. On…
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Chavers v. State, 112 So. 3d 594 (Fla. 4th DCA 2013)…... shall be sentenced to a minimum term of imprisonment of 20 years. § 775.087(2), Fla. Stat. (2008) (emphasis added). The jury must make a clear finding that the defendant discharged the firearm to apply the sentence enhancement. Parker v. State, 921 So. 2d 812, 813 (Fla. 4th DCA 2006). Appellant relies on Lemus v. State, 33 So. 3d 774 (Fla. 4th DCA 2010), and Sims v. State, 44 So. 3d 1222 (Fla. 5th DCA 2010), to assert that the twenty-year minimum mandatory sentence should be reversed. Both cases are dis…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Apprendi v. New Jersey, 530 U.S. 466 (U.S. 2000)
- Blakely v. Washington, 542 U.S. 296 (U.S. 2004)
- State v. Overfelt, 457 So. 2d 1385 (Fla. 1984)
- State v. Vinney Tripp, 642 So. 2d 728 (Fla. 1994)
- State v. Hargrove, 694 So. 2d 729 (Fla. 1997)
- Tucker v. State, 726 So. 2d 768 (Fla. 1999)
- State v. Parker, 812 So. 2d 495 (Fla. 4th DCA 2002)
- Muldrow v. State, 842 So. 2d 240 (Fla. 2d DCA 2003)
- Koch v. State, 874 So. 2d 606 (Fla. 5th DCA 2004)