VINCENT MOBLEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Vincent Mobley appealed the denial of his motion to correct an illegal sentence under Florida Rule of Criminal Procedure 3.800(a). The court found that his twenty-year minimum mandatory sentence on count four (armed robbery with possession of firearm) was illegal because the information charged only possession, not discharge, and accordingly reversed and remanded for resentencing on that count to reflect the ten-year minimum mandatory term applicable to possession.
Mobley's twenty-year minimum mandatory sentence on count four is illegal because the information did not charge discharge of a firearm and thus did not contain the grounds for the enhanced minimum mandatory sentence. The court reversed the sentence on count four and remanded for resentencing in accordance with the ten-year minimum mandatory term applicable to possession under section 775.087(2)(a)1.
[1] A defendant cannot agree to an illegal sentence, even if the agreement is part of a plea bargain.
[2] The grounds for sentence enhancement under Florida's 10-20-life firearm statute must be charged in the information.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The grounds for enhancement of a sentence under 10-20-life must be charged in the information.”
Establishes the fundamental requirement that enhancement grounds must be included in the charging document
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Join FLexlaw to unlock all legal intelligenceMobley entered a guilty plea to two counts of armed robbery in exchange for concurrent sentences of twenty-five years with twenty-year minimum mandato…
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PER CURIAM.
The appellant challenges the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm the denial of all but one of the appellant’s claims.
The appellant entered a plea of guilty to two counts of armed robbery (counts four and five) in exchange for concurrent sentences of twenty-five years’ imprisonment with twenty-year minimum mandatory terms for discharging a firearm. The appellant asserts that his twenty-year minimum mandatory sentence for count four is illegal because he was not charged with “discharging” a firearm under section 775.087(2)(a)2., Fla. Stat. (2002).
Rather, the appellant was charged with “possession” of a firearm in count four, which carries a minimum mandatory term of only ten years’ imprisonment under section 775.087(2)(a)1. The grounds for enhancement of a sentence under 10-20-life must be charged in the information. See Jackson v. State, 852 So. 2d 941, 944 (Fla. 4th DCA 2003); Gibbs v. State, 623 So. 2d 551, 555 (Fla. 4th DCA 1993).
The information charged the appellant with possessing a firearm in count four and discharging a firearm in count five. Because the appellant was charged with possessing a firearm in count four, he could not be sentenced on that count for discharging a firearm. Jackson, supra; Gibbs, supra. As to count four, the appellant’s twenty-year minimum mandatory sentence is illegal because the information did not contain the grounds for enhancement. Whitehead v. State, 884 So. 2d 139 (Fla. 2d DCA 2004); Leath v. State, 805 So. 2d 956 (Fla. 2d DCA 2001).
The fact that the appellant agreed to the twenty-year minimum mandatory sentence is irrelevant, as a defendant cannot agree to an illegal sentence. See Leavitt v. State, 810 So. 2d 1032 (Fla. 1st DCA 2002).
Further, the state cannot use the allegation of discharge of a firearm in one count to support the enhancement of another count. Gibbs, 623 So. 2d at 555.
Accordingly, we reverse and remand for the trial court to resentence the appellant on count four in accordance with section 775.087(2)(a)1.
We affirm the denial of the appellant’s motion in all other respects.
AFFIRMED in part, REVERSED in part, and REMANDED.
WEBSTER, BENTON, and VAN NORTWICK, JJ., concur.
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Bradley v. State, 3 So. 3d 1168 (Fla. 2009)…ate, 852 So. 2d 941 (Fla. 4th DCA 2003). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons that follow, we approve the result reached by the Fifth District in Bradley, and disapprove the results in Jackson and Mobley v. State, 939 So. 2d 213 (Fla. 1st DCA 2006), to the extent they hold that a defendant’s plea may not constitute an express waiver of a defective charging document that fails to allege the proper grounds for sentence enhancement. FACTS AND PROCEDURAL HISTORY Ricky Bradley…1 / 2
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Kingry v. State, 28 So. 3d 173 (Fla. 1st DCA 2010)…es (2003)). Because such a designation is “neither a sentence nor a punishment,” appellant’s agreement to be so designated is not con [*174] trolled by those cases which hold that one may not agree to an illegal sentence. See, e.g., Mobley v. State, 939 So. 2d 213, 214 (Fla. 1st DCA 2006). Rather, it is controlled by cases such as Ackermann v. State, 962 So. 2d 407, 408 (Fla. 1st DCA 2007) (stating that a defendant cannot be sentenced to drug offender probation unless he agrees to such as part of his plea bar…
Authorities Cited
- Leath v. State, 805 So. 2d 956 (Fla. 2d DCA 2001)
- Gibbs v. State, 623 So. 2d 551 (Fla. 4th DCA 1993)
- Sheron Jackson v. State, 852 So. 2d 941 (Fla. 4th DCA 2003)
- Whitehead v. State, 884 So. 2d 139 (Fla. 2d DCA 2004)
- Kelso v. State, 810 So. 2d 1032 (Fla. 1st DCA 2002)