AARON SYLVESTER HOPE, SR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the appellant's claims regarding the legality of mandatory minimum sentences were not preserved for appellate review due to the lack of a contemporaneous objection or a rule 3.800(b)(2) motion.
[1] Appellate claims regarding the legality of mandatory minimum sentences are not preserved for review if not raised by contemporaneous objection or a rule 3.800(b)(2) motio…
[2] Sentencing claims not preserved for direct appeal may be raised in a motion for postconviction relief or a petition alleging ineffectiveness of appellate counsel.
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Join FLexlaw to unlock all legal intelligenceAppellant was convicted of attempted first-degree murder and other felonies, and sentenced with mandatory minimums under the 10/20/life statute. The a…
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Appellant was convicted of attempted first-degree murder (count 1), aggravated battery with a deadly weapon (count 2), and three counts of aggravated assault •with a deadly weapon (counts 3, 4, and 5). The convictions were affirmed on direct appeal, but the case was remanded for resentencing because the aggravated battery charge had been dismissed. See *1046 Hope v. State, 68 So.3d 366 (Fla. 1st DCA 2011).
On remand, Appellant was sentenced to life in prison with a mandatory minimum of 25 years on count 1, and 20 years concurrent with 20-year mandatory minimums on counts 3, 4, and 5.1 The mandatory mínimums were imposed under the 10/20/life statute based on the jury’s findings that Appellant discharged a firearm causing great bodily harm during the commission of count 1 and that he discharged a firearm during the commission of counts 3, 4, and 5.
In this direct appeal from resen-tencing, Appellant argues2 1) that the mandatory minimum for count 1 is illegal because the information for that count alleged only discharge of a firearm (for which the mandatory minimum is 20 years3), not discharge causing great bodily harm; and 2) that the mandatory minimums for counts 3, 4, and 5 are illegal because the information for those counts alleged only possession of a firearm (for which the mandatory minimum is 3 years4), not discharge. We cannot consider these claims on the merits because they were not preserved for appellate review by a contemporaneous objection or a rule 3.800(b)(2) motion.5 See Jackson v. State, 983 So.2d 562, 568 (Fla.2008) (quoting Brooks v. State, 969 So.2d 238, 241-42 (Fla.2007)). We decline Appellant’s invitation to make an exception to the preservation requirement simply because his claims appear to have merit based on Young v. State, 86 So.3d 541 (Fla. 2d DCA 2012), and cases cited therein. See also Driggers v. State, 917 So.2d 329, 333 (Fla. 5th DCA 2005); Altieri v. State, 835 So.2d 1181, 1183 (Fla. 4th DCA 2002).
Accordingly, we affirm Appellant’s sentences. We do so, however, without *1047prejudice to Appellant raising the above claims in a motion for postconviction relief under rule 8.800(a) or rule 3.850, see Jackson, 988 So.2d at 568, or a petition alleging ineffectiveness of appellate counsel. See Evans v. State, 904 So.2d 638 (Fla. 1st DCA 2005).
AFFIRMED.6
ROBERTS, WETHERELL, and SWANSON, JJ., concur.
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Capehart v. State, 148 So. 3d 169 (Fla. 1st DCA 2014)…. State, 983 So. 2d 562, 568-69 (Fla.2008). Accordingly, we affirm Appellant’s judgment and sentence. However, we do so without prejudice to Appellant’s raising the unpreserved claim in a proper motion for postconviction relief. See Hope v. State, 134 So. 3d 1044, 1046 (Fla. 1st DCA 2013). AFFIRMED. LEWIS, C.J., BENTON and RAY, JJ., concur.…
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Washington v. State, 168 So. 3d 1290 (Fla. 1st DCA 2015)…file a post-sentence motion under rule 3.800(b)” to obtain review of sentencing errors subject to correction under Florida Rule of Criminal Procedure 3.800(b), including situations where “the sentence exceeds the statutory maximum”); Hope v. State, 134 So. 3d 1044, 1046-47 (Fla. 1st DCA 2013). ROBERTS, C.J., BENTON, and LEWIS, JJ., concur.…
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Reager v. State (Fla. 1st DCA 2019)
Authorities Cited (12 total)
- State v. Causey, 503 So. 2d 321 (Fla. 1987)
- Logan v. State, 846 So. 2d 472 (Fla. 2003)
- Jackson v. State, 983 So. 2d 562 (Fla. 2008)
- In re App. Court Response to Anders Briefs, 581 So. 2d 149 (Fla. 1991)
- Brooks v. State, 969 So. 2d 238 (Fla. 2007)
- Altieri v. State, 835 So. 2d 1181 (Fla. 4th DCA 2002)
- Driggers v. State, 917 So. 2d 329 (Fla. 5th DCA 2005)
- Hughes v. State, 565 So. 2d 354 (Fla. 1st DCA 1990)
- Jermey Dale Garvin v. State, 904 So. 2d 638 (Fla. 1st DCA 2005)
- Young v. State, 86 So. 3d 541 (Fla. 2d DCA 2012)