LEROY MCKENZIE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Leroy McKenzie appeals his life sentences for two counts of attempted second-degree murder with a firearm, claiming they exceed statutory maximums. The court agrees, finding that life sentences violate Florida's thirty-year maximum for first-degree felonies and that the trial court improperly imposed twenty-five-year minimum mandatory terms unsupported by the charging information.
The court held that life sentences exceed the statutory maximum thirty-year penalty for first-degree felonies and that the trial court improperly imposed twenty-five-year minimum mandatory terms. However, because the amended information alleged discharge of a firearm during the attempted murders, McKenzie was convicted of attempting to commit a felony while discharging a firearm, carrying a twenty-year minimum mandatory term under section 775.087(2)(a)(2).
[1] A jury finding of great bodily harm cannot cure a defect in the charging information that failed to allege great bodily harm.
[2] A conviction for attempted second-degree murder during which a firearm was discharged, but without allegation or finding of great bodily harm, carries a maximum statutory…
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Join FLexlaw to unlock all legal intelligence“the State properly concedes that McKenzie's life sentences exceed the statutory maximum penalty of thirty years' incarceration for first-degree felonies”
Establishes that life sentences violate the statutory maximum for the offense of conviction
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Join FLexlaw to unlock all legal intelligenceMcKenzie was charged with two counts of attempted second-degree murder with a firearm, carrying a concealed weapon, and shooting into an occupied buil…
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Leroy McKenzie appeals the postconviction court’s order summarily denying his motion to correct an illegal sentence, filed pursuant to Florida Rule of Criminal Procedure 3.800(a). McKenzie seeks correction of his life sentences for two convictions of attempted second-degree murder with a firearm, which he claims exceed the statutory maximum penalties. We agree and reverse.
McKenzie was charged with two counts of attempted second-degree murder with a firearm and one count each of carrying a concealed weapon and shooting into an occupied building. In the initial information, the State charged McKenzie with the attempted murder of two victims by discharging a firearm and, as a result, inflicting great bodily harm on the victims. The State filed an amended information, again charging McKenzie with two counts of attempted second-degree murder with a firearm, one count of carrying a concealed weapon, and one count of shooting into an occupied building. However, the amended information failed to allege infliction of great bodily harm.
McKenzie was tried and found guilty on all counts. The jury specifically found that McKenzie discharged a firearm during the course of the attempted murders and that, as a result of the discharge, great bodily harm was inflicted on the victims. McKenzie’s convictions for attempted second-degree murder were reclassified from second-degree felonies to first-degree felonies as a result of the firearm element, pursuant to section 775.087(1), Florida Statutes (2000). The trial court sentenced McKenzie to two terms of life in prison for the attempted murders, each with a twenty-five-year minimum mandatory term pursuant to section 775.087(2)(a)(3), five years in prison for carrying a concealed weapon, and fifteen years in prison for shooting into a building, all to run concurrently.
This court ordered the State to respond to McKenzie’s claim that the trial 'court imposed illegal sentences beyond the statutory maximum term, and the State properly concedes that McKenzie’s life sentences exceed the statutory maximum penalty of thirty years’ incarceration for first-degree felonies. See § 775.082(3)(b). The State also properly concedes that the trial court could not legally impose twenty-five-year minimum mandatory terms. Although the jury found McKenzie guilty of two counts of attempted second-degree murder during the commission of which he discharged a firearm resulting in great bodily harm to the victims, the element of great bodily harm was not alleged in the amended information. A jury finding cannot cure this defect in the amended information. See Daniel v. State, 935 So.2d 1240, 1241 (Fla. 2d DCA 2006). However, the amended information did specifically allege that McKenzie attempted to murder the victims “by shooting at or in the- direction of’ the victims with a firearm. The jury found that McKenzie discharged a firearm in the course of committing the attempted murders. Therefore, McKenzie was charged with, and convicted of, an attempt to commit a felony during which he discharged a firearm, an offense that carries a minimum mandatory term of twenty years in prison, pursuant to section 775.087(2)(a)(2). See Daniel, 935 So.2d at 1241.
*277On remand, the postconviction court shall resentence McKenzie on the attempted second-degree murder counts to no more than thirty years in prison on each count, with minimum mandatory terms of twenty years.
Reversed and remanded.
CRENSHAW and MORRIS, JJ, Concur.
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Figueroa v. State, 84 So. 3d 1158 (Fla. 2d DCA 2012)…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 elements that were never charged, constituting fundamental error); McKenzie v. State, 31 So. 3d 275, 276 (Fla. 2d DCA 2010); Freudenberger v. State, 940 So. 2d 551, 554-55 (Fla. 2d DCA 2006) (discussing the need for precision in the charging document in cases involving section 775.087); Whitehead v. State, 884 So. 2d 139, 140 (Fla. 2d DCA 2004); H…1 / 2
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Lewis v. State, 177 So. 3d 64 (Fla. 2d DCA 2015)…error, id. at 710, the failure to allege the facts necessary for imposition of a mandatory minimum term under section 775.087 renders the sentence illegal, see Whitehead, 884 So. 2d at 140. The issue in this case is controlled by McKenzie v. State, 31 So. 3d 275, 276 (Fla. 2d DCA 2010), in which the jury found McKenzie guilty of two counts of attempted second-degree murder during the commission of which he discharged a firearm resulting in great bodily harm to the victims, and the trial court imposed a twen…
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Ivory Lee Robinson v. State, 215 So. 3d 1262 (Fla. 1st DCA 2017)…875 So. 2d 769 (Fla. 2d DCA 2004), Davis v. State, 884 So. 2d 1058 (Fla. 2d DCA 2004), and Daniel v. State, 935 So. 2d 1240 (Fla. 2d DCA 2006), as supporting per se reversible error for technical-defects in charging documents. See McKenzie v. State, 31 So. 3d 275 (Fla. 2d DCA 2010); Green v. State, 139 So. 3d 460 (Fla. 1st DCA 2014); Lewis v. State, 177 So. 3d 64 (Fla. 2d DCA 2015), However, the Florida Supreme Court’s recent opinion in Martinez v. State, No. SC15-1620, 211 So. 3d 989, 2017 WL 728098 (Fla. F…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Daniel v. State, 935 So. 2d 1240 (Fla. 2d DCA 2006)