VINCENT B. DANIEL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Vincent B. Daniel was convicted of attempted first-degree murder with a firearm. The court affirmed his conviction but reversed his 25-year minimum mandatory sentence under Florida's "10-20-Life" statute because the information did not properly allege that Daniel discharged the firearm or that death or great bodily harm resulted, and remanded for resentencing to the 10-year minimum mandatory.
The trial court erred in imposing a 25-year minimum mandatory because the information did not allege that Daniel discharged a firearm or that death or great bodily harm resulted. On remand, the trial court must impose a 10-year minimum mandatory pursuant to section 775.087(2)(a)(1) for possession of a firearm during an enumerated felony.
[1] A sentence enhancement under Florida Statute section 775.087(2)(a)(3) requires an allegation in the charging instrument that a firearm was discharged, not merely used.
[2] An allegation of "use" of a firearm is insufficient to support a sentence enhancement under Florida Statute section 775.087(2)(a)(3) when the statute requires the firearm…
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Join FLexlaw to unlock all legal intelligence“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.”
Establishes the critical requirement that charging elements must be alleged in the information, not merely proven at trial.
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Join FLexlaw to unlock all legal intelligenceVincent B. Daniel was charged with attempted first-degree murder "by firearm" in an amended information. The jury found Daniel guilty of attempted mur…
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SILBERMAN, Judge.
Vincent B. Daniel appeals his judgment and sentence for attempted first-degree murder with a firearm.
We affirm his conviction without discussion but reverse his minimum mandatory sentence imposed pursuant to the “10-20-Life” statute, section 775.087(2), Florida Statutes (2004). On appeal, the State properly concedes that the trial court erred in imposing a twenty-five-year minimum mandatory sentence under section 775.087(2)(a)(3). The State charged in the amended information that Daniel committed attempted first-degree murder “by firearm” but did not allege that Daniel discharged a firearm or that death or great bodily harm resulted.
The jury found Daniel guilty of attempted murder in the first degree and that Daniel “during the course of the crime, discharged a firearm that resulted in death or great bodily harm to a person.” The trial court imposed a thirty-five year sentence with a minimum mandatory of twenty-five 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). “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 Daniel’s twenty-five-year minimum mandatory sentence imposed under section 775.087(2)(a)(3) and remand for resentencing.
The State contends that on remand the trial court can impose a ten-year minimum mandatory pursuant to section 775.087(2)(a)(l) for possession of a firearm during an enumerated felony. The State argues that the language of the amended information can by read to allege that Daniel possessed a firearm during the commission of the crime. In Altieri, the court determined that an allegation that the defendant “ ‘used a deadly weapon, to wit: a firearm’ ” was sufficient to give the defendant notice that he was subject to a minimum mandatory for possession of a firearm under section 775.087(2)(a)(l). 835 So. 2d at 1185.
Here, rather than alleging that Daniel “used” or “possessed” a firearm, the State alleged that Daniel “from a premeditated design to affect the death of EDMUND R. SANFORD JR., a human being, did attempt to kill the said EDMUND R. SANFORD JR. by FIREARM[.]” The language that Daniel “did attempt to kill” the victim “by firearm” means that he committed the crime “by using a firearm.” In addition, no accomplices were charged with committing the crime with Daniel; therefore, if Daniel committed the crime “by firearm,” then he necessarily possessed the firearm. Cf. Leath v. State, 805 So. 2d 956, 957 (Fla. 2d DCA 2001) (reversing three-year minimum mandatory for possession of firearm when the information alleged that the firearm was in the co-defendant’s possession).
Furthermore, the jury, in finding that Daniel discharged a firearm, necessarily found that he possessed it.
Thus, on remand, the trial court shall sentence Daniel to the ten-year minimum mandatpry pursuant to section 775.087(2)(a)(l). Daniel need not be present for resentencing.
Affirmed in part, reversed in part, and remanded.
WHATLEY, J., and BLACK, ANTHONY K., Associate Judge, Concur.
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Citator
Cited By (13 total)
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Figueroa v. State, 84 So. 3d 1158 (Fla. 2d DCA 2012)…ction and totally omits an essential element of the crime. And “ ‘[n]either a jury finding nor inclusion of the appropriate statute number in the information can cure’ ” the State’s failure to charge essential elements of the crime. Daniel v. State, 935 So. 2d 1240, 1241 (Fla. 2d DCA 2006) (quoting Davis v. State, 884 So. 2d 1058, 1061 (Fla. 2d DCA 2004)); see also Jaimes, 51 So. 3d at 452 (directing entry of a verdict for a lesser-included crime where the defendant was convicted of an offense based on element…
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Sawyers v. State (Fla. 2d DCA 2026)…nstead, the information charges aggravated battery in the alternative by alleging Espinoza used a firearm or knowingly caused great bodily harm, which suggests that any use of the firearm did not cause great bodily harm."); cf. also Daniel v. State, 935 So. 2d 1240, 1241 (Fla. 2d DCA 2006) (noting that the information wholly failed to allege either that the defendant "discharged a firearm or that death or great bodily harm resulted").5 Because Sawyers' information did not totally omit the element triggering th…1 / 2
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Thaddeus Simms v. State, 949 So. 2d 373 (Fla. 4th DCA 2007)…arm, only that he used a deadly weapon in the process of committing the offense; however, allegation was sufficient to place defendant on notice that he was charged subject to three-year mandatory minimum for possession of firearm); Daniel v. State, 935 So. 2d 1240 (Fla. 2d DCA 2006) (reversing twenty-five year minimum mandatory sentencing where state failed to allege in information that defendant discharged firearm and that death or great bodily harm resulted; remanding for imposition of ten-year minimum mand…
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)
- Davis v. State, 884 So. 2d 1058 (Fla. 2d DCA 2004)
- Ennis Leonard Rogers v. State, 875 So. 2d 769 (Fla. 2d DCA 2004)
- Adams v. State, 916 So. 2d 36 (Fla. 2d DCA 2005)