PHILLIP J. CRUZ, APPELLANT,

v.

STATE OF FLORIDA, APPELLEE

Citator

Cited By

• Montrell L. Johnson v. State, 149 So. 3d 727 (Fla. 5th DCA 2014)
  …son was re-sentenced to twenty years in prison pursuant to section 775.087(2)(a)2. He contends that his sentence is illegal. Trial counsel’s failure to object to an illegal sentence constitutes ineffective assistance of counsel. Hernandez v. State, 30 So. 3d 610, 612-13 (Fla. 3d DCA 2010) (citing Rudolph v. State, 968 So. 2d 633 (Fla. 2d DCA 2007); Penn v. State, 941 So. 2d 466 (Fla. 1st DCA 2006)). “Aggravated battery with a firearm is not subject to reclassification pursuant to section 775.087(1) because…
• Elmore v. State, 172 So. 3d 465 (Fla. 1st DCA 2015)
  …this case could fall under the exception to general rule because, in the post-conviction context, it is well-established that the failure to object to an illegal sentence constitutes ineffective assistance of counsel. See, e.g., Hernandez v. State, 30 So. 3d 610, 613 (Fla. 3d DCA 2010); Rudolph v. State, 968 So. 2d 633, 633 (Fla. 2d DCA 2007); Penn v. State, 941 So. 2d 466, 466 (Fla. 1st DCA 2006). However, recognizing ineffective assistance of counsel on the face of the record in these circumstances would…
• Brady v. State, 65 So. 3d 599 (Fla. 5th DCA 2011)
  …y as charged”. Regardless of what language is contained in the information, if the jury is instructed on both types of aggravated battery and returns a verdict of “guilty as charged,” then reclassification is not permissible. In Hernandez v. State, 30 So. 3d 610 (Fla. 3d DCA 2010), the Third District, in a case in which the information charged only the great bodily harm form of aggravated battery, held that the reclassification of the charge from a second-degree felony to a first-degree felony was improper…