ISAAC J. NELSON, III, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Isaac J. Nelson III appeals the denial of his Rule 3.800(a) motion challenging mandatory minimum sentences imposed under Florida's 10-20-Life law. Nelson argued the indictment failed to charge the 'death or great bodily harm' element required to trigger the twenty-five year mandatory minimums, but the court affirmed, finding the indictment adequately charged shooting the victims.
The court affirmed the denial of Nelson's Rule 3.800(a) motion on both counts, finding that the indictment sufficiently charged the 'death or great bodily harm' element. As to Count I, the indictment charged Nelson 'did kill' the victim 'by shooting him'; as to Count II, the allegation that Nelson shot the victim was sufficient to give notice of the 'great bodily harm' element.
[1] A defendant can waive the failure to precisely charge grounds for a mandatory minimum sentence under the 10-20-Life law.
[2] A charging defect that does not result in an illegal sentence is subject to waiver by the lack of a contemporaneous objection.
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Join FLexlaw to unlock all legal intelligence“a defendant can waive the failure to precisely charge grounds for a mandatory minimum under the 10-20-Life law.”
Establishes that waiver of charging defects is possible in 10-20-Life cases, relying on Bradley v. State
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Join FLexlaw to unlock all legal intelligenceNelson was charged with first degree murder with a firearm (Count I) and attempted first degree murder with a firearm (Count II). A jury convicted him…
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Isaac J. Nelson, III, appeals an order summarily denying his Rule 3.800(a) motion. He challenged the twenty-five year mandatory minimum terms imposed on his convictions for second degree murder with a firearm and attempted first degree murder with a firearm under the 10-20-Life law. § 775.087(2)(a)3, Fla. Stat. (1999) (requiring imposition of twenty-five year mandatory minimum for discharge of firearm, resulting in death or great bodily harm, during the course of committing an enumerated offense). His claim was that the indictment did not charge “death or great bodily harm,” and therefore the mandatory terms were illegal. We affirm as to both counts.
Nelson was charged with first degree murder with a firearm as to one victim (Count I), and attempted-first degree murder with a firearm as to a second victim (Count II). A jury fuund him guilty of the lesser included offense of second degree murder with a firearm as to Count I and guilty as charged as to Count II. In the verdict for Count I, the jury found that Nelson discharged a firearm and “as a result caused death or great bodily harm” to the victim. In Count II, the jury also found that he discharged a firearm and, as a result, “great bodily harm” was inflicted on the victim. He was sentenced to concurrent terms of 26.6 years, each with -a twenty-five year mandatory minimum pursuant to section 775.087(2).
In his Rule 3.800(a) motion, Nelson alleged that the enhancement of his sentences with the twenty-five year mandatory minimum terms, was illegal because death or great bodily ■ harm was not charged in the indictment, a copy of which he attached. He cited authority for the proposition that neither the inclusion of the statute number in the-charging document, nor the jury finding, could cure this fatal defect. E.g., Whitehead v. State, 884 So.2d 139, 140 (Fla. 2d DCA 2004) (reversing in part the summary denial of a rule 3.800(a). motion where defendant’s sentence included- a twenty-year mandatory minimum for discharging a firearm, but the information charged only use of a firearm).
At the outset, we note that the alleged error in this case should be deemed waived by the lack of a contemporaneous objection when the special interrogatory was submitted to the jury and when the sentence was imposed in December 2000. This alleged charging defect does not result in an illegal sentence subject to correction at any time under rule 3.800(a). See Martinez v. State, 169 So.3d 170, 172 (Fla. 4th DCA 20Í5), rev. granted, No. SC15-1620, 2016 WL 1082749 (Fla. Mar. 11, 2016). As we explained in Martinez, the Florida Supreme Court in Bradley v. State, 3 So.3d 1168, 1171 (Fla.2009), “recognized that a defendant can waive the failure to precisely charge grounds for a mandatory minimum under the 10-20-Life law.” Martinez, 169 So.3d at 172.
On the merits, however, we affirm the denial as to Count I, because, as the record shows, Count I of the indictment charged that Nelson “did ... kill” the victim “by shooting him” and had a handgun in his possession.
We also affirm as to Count II of the indictment, which charged that Nelson “did unlawfully attempt to commit first degree murder with a firearm ... by shooting [the victim], but [Defendant] failed in the perpetration or was intercepted or prevented in the execution of said offense, contrary to Florida Statutes 777.04(1), 775.087(2) and 782.04(l)(a).” We agree with the state’s position that the allegation that Nelson shot the victim was sufficient to give notice of the “great bodily harm” element. See Coke.v. State, 955 *953So.2d 1216, 1217 (Fla. 4th DCA 2007) (concluding that an information which charged the defendant with aggravated battery by “shooting [the victim] in the .legs”, was sufficient to advise defendant of the “great bodily harm” element, as. language was more specific than “simply alleging great bodily harm”).
Affirmed.
TAYLOR, GERBER and FORST, JJ„ concur.
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Citator
Cited By
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Ivory Lee Robinson v. State, 215 So. 3d 1262 (Fla. 1st DCA 2017)…ntence” subject to correction at any time under rule 3.800(a). The Florida Supreme Court recognizes that a defendant can waive the failure to precisely charge grounds for a mandatory minimum under the “10-20-Life” law. See Martinez; Nelson v. State, 191 So. 3d 950 (Fla. 4th DCA 2016); Rolling v. State, 215 So. 3d 70, 2016 WL 4723682 (Fla. 3rd DCA Aug. 17, 2016); Connolly v. State, 172 So. 3d 893 (Fla. 3d DCA 2015); Bradley v. State, 3 So. 3d 1168 (Fla. 2009). The technical-defect challenge raised by the defe…
Authorities Cited
- Bradley v. State, 3 So. 3d 1168 (Fla. 2009)
- Whitehead v. State, 884 So. 2d 139 (Fla. 2d DCA 2004)
- Hatachi Coke v. State, 955 So. 2d 1216 (Fla. 4th DCA 2007)
- Martinez v. State, 169 So. 3d 170 (Fla. 4th DCA 2015)