LEON BULLARD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Bullard appeals his conviction for attempted second-degree murder, aggravated battery with discharge of a firearm, and possession of a firearm by a convicted felon. The court reversed the aggravated battery with firearm discharge conviction, finding insufficient evidence of a second firearm discharge, but affirmed the other convictions and the consecutive mandatory minimum sentences.
The court reversed the conviction for aggravated battery with discharge of a firearm, finding no evidence in the surveillance video of a second firearm discharge, and instructed reduction to simple aggravated battery. The court affirmed the convictions for attempted second-degree murder and possession of a firearm by a convicted felon, and affirmed the imposition of consecutive mandatory minimum sentences as required by statute.
[1] A conviction for aggravated battery with discharge of a firearm requires evidence that the firearm discharged a second time during the commission of the battery.
[2] A trial court errs in not granting a judgment of acquittal as to the enhancement of an aggravated battery charge when the evidence does not support the enhancement.
Previewing 2 of 5 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“Upon our close review of the video, we find that it does not provide evidence of this second discharge during the battery, and that the trial court erred in not granting a judgment of acquittal as to the enhancement of the battery charge.”
Establishes the basis for reversing the aggravated battery with firearm discharge conviction due to insufficient evidence
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Join FLexlaw to unlock all legal intelligenceAppellant was convicted of attempted second-degree murder, aggravated battery with discharge of a firearm, and possession of a firearm by a convicted …
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Appellant appeals a final order adjudicating him guilty of attempted second de*347gree murder, aggravated battery with discharge of a firearm, and possession of a firearm by a convicted felon, along with the three consecutive mandatory minimum sentences. Appellant raises five issues on appeal; only two merit discussion. For the reasons explained below, we reverse Appellant’s conviction for aggravated battery with discharge of a firearm, and instruct the trial court to reduce the conviction to aggravated battery, and resentence Appellant accordingly. See § 924.33, Fla. Stat. We affirm Appellant’s convictions of attempted second degree murder and possession of a firearm by a convicted felon, as well as the consecutive mandatory minimum sentences, subject to the aforementioned reduction in the sentence for aggravated battery.
At trial, Appellant moved for judgment of acquittal on the enhancement to the battery charge, arguing that there was no evidence of the firearm discharging a second time during the battery. We review a motion for judgment of acquittal de novo. Pagan v. State, 830 So.2d 792, 803 (Fla.2002). The only purported evidence of the firearm discharging during the battery was a surveillance video, and both parties agree that our review of this surveillance video is de novo. See Parker v. State, 873 So.2d 270, 279 (Fla.2004). Upon our close review of the video, we find that it does not provide evidence of this second discharge during the battery, and that the trial court erred in not granting a judgment of acquittal as to the enhancement of the battery charge. Without the enhancement, Appellant’s 25-year sentence for aggravated battery could not be lawfully imposed.
Sentencing errors are reviewed de novo. Clowers v. State, 31 So.3d 962, 965 (Fla. 1st DCA 2010). Section 775.087(2)(a)l., Florida Statutes, provides that any person convicted of, inter alia, aggravated battery, and “during the commission of the offense, such person actually possessed a ‘firearm’... shall be sentenced to a minimum term of imprisonment of 10 years.... ” Therefore, we remand for resentencing.
Appellant also asserts that the trial court erred by imposing consecutive mandatory minimum sentences, arguing that the trial court’s finding that consecutive sentences were required by law was erroneous. We disagree. Section 775.087(2)(d), Florida Statutes, plainly states that consecutive mandatory minimum sentences shall be imposed for each qualifying felony count; additionally, this court held as much in, inter alia, Walton v. State, 106 So.3d 522 (Fla. 1st DCA 2013), review granted, 123 So.3d 1148 (Fla.2013), and Jackson v. State, 157 So.3d 539 (Fla. 1st DCA 2015). Consequently, we affirm the lower court’s order imposing consecutive mandatory minimum sentences, subject to the aforementioned correction in the sentence for aggravated battery.
AFFIRMED in part, REVERSED in part, and REMANDED for resentencing.
MARSTILLER and KELSEY, JJ., concur.
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Bullard v. State, 238 So. 3d 1291 (Fla. 1st DCA 2018)…quested by Appellant, we note our prior opinion held that Appellant could not be convicted of aggravated battery with a firearm, as we determined that the evidence could not support a finding of a second discharge of the firearm. Bullard v. State, 168 So. 3d 346 (Fla. 1st DCA 2015), rev. granted, 2017 WL 2302327 (Fla. May 26, 2017). REVERSED and REMANDED for new trial. B.L. THOMAS, C.J., and KELSEY and JAY, JJ., concur. _____________________________ Not final until disposition of any timely and authorize…
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McMath v. State (Fla. 1st DCA 2025)
Authorities Cited
- Pagan v. State, 830 So. 2d 792 (Fla. 2002)
- J.B. Parker v. State, 873 So. 2d 270 (Fla. 2004)
- Leronnie Lee Walton v. State, 106 So. 3d 522 (Fla. 1st DCA 2013)
- Clowers v. State, 31 So. 3d 962 (Fla. 1st DCA 2010)
- Jackson v. State, 157 So. 3d 539 (Fla. 1st DCA 2015)