Opinion
Case No. 5D19-457
01-03-2020
Xevrick J. LATIMORE a/k/a Michael Latimore, Appellant, v. STATE of Florida, Appellee.
Xevrick J. Latimore, a/k/a Michael Latimore, Punta Gorda, pro se. Ashley Moody, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appellee.
Xevrick J. Latimore, a/k/a Michael Latimore, Punta Gorda, pro se.
Ashley Moody, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appellee.
HARRIS, J.
Michael Latimore appeals the postconviction court's summary denial of his motion to correct illegal sentence, filed pursuant to Florida Rule of Criminal Procedure 3.800(a). He argues that the 25-year minimum mandatory sentence imposed upon him pursuant to section 775.087(2), Florida Statutes (2001), commonly referred to as the 10-20-Life statute, was an illegal sentence. We agree. We find no error in the summary denial of Latimore's remaining claims.
Following a jury trial, Latimore was convicted of attempted voluntary manslaughter, third-degree grand theft, possession of a short-barreled shotgun, and armed robbery with a weapon. Latimore only challenges his sentence as to the armed robbery conviction. Per the verdict form, the jury found Latimore "[g]uilty as charged of Armed Robbery with a firearm." The jury made a special finding that Latimore discharged a firearm and caused death or great bodily harm to another person. Latimore's written judgment on this count listed the crime as "robbery with a firearm" in violation of sections 812.13(1) and (2)(b)(1), Florida Statutes (2001).
As to the armed robbery charge, the information charged that Latimore:
[I]n violation of [Florida Statutes] 812.13(1) [and] (2)(b), ... by force, violence, assault or putting in fear take away from the person or custody ... certain property of value ... with the intent to deprive ... rights to said property or a benefit therefrom and, in the course of committing said robbery, carried a weapon, to wit: a shotgun.
When a person is convicted of robbery, and during the commission of the robbery a firearm was involved, that person is subject to a minimum mandatory sentence. § 775.087(2)(a), Fla. Stat. (2001). Specifically, if the person "actually possessed" a firearm, the law requires that they "shall be sentenced to a minimum term of imprisonment of 10 years," but if the person "discharged a ‘firearm’ ... and, as the result of the discharge, death or great bodily harm was inflicted upon any person, the convicted person shall be sentenced to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison." § 775.087(2)(a) 1., 3., Fla. Stat. (2001). These mandatory minimums do not apply when a defendant possessed or used a firearm while perpetrating a manslaughter. See § 775.087(2)(a) 1., Fla. Stat. (2001); see also Wilson v. State, 542 So. 2d 433, 434 (Fla. 4th DCA 1989).
To pursue an enhanced mandatory sentence as the 10-20-Life statute [prescribes], the state must allege the grounds for enhancement in the charging document. The statutory elements for such enhancement must be precisely charged in the information. [I]f the state wishes to give notice of an enhancement by reference to a statute in the charging document, the state must refer to the specific subsection which subjects the defendant to the enhanced sentence. An information's failure to cite to the specific statutory subsection, while simultaneously failing to precisely charge the elements, cannot be cured by a jury's factual findings.
Espinoza v. State, 264 So. 3d 343, 344 (Fla. 5th DCA 2019) (internal quotations and citations omitted). Additionally, the State cannot rely on grounds alleged in one count to support an enhanced mandatory sentenced on a different count. Solomon v. State, 254 So. 3d 1121, 1124 (Fla. 5th DCA 2018) (citations omitted). Lastly, an information that alleges the defendant "carried" a firearm cannot support a mandatory minimum sentence based on actual possession. Grant v. State, 138 So. 3d 1079, 1085–86 (Fla. 4th DCA 2014).
Therefore, because the information did not allege that Latimore discharged a firearm, or that he violated the specific statutory subsection for discharging a firearm causing great bodily harm, his sentence was illegal. The information's allegations that he "carried a weapon, to-wit: a shotgun" are insufficient. See Espinoza, 264 So. 3d at 344–45 ("The information does not allege that Espinoza discharged the firearm. It also does not allege that Espinoza used a firearm to commit bodily harm. Instead, the information charges aggravated battery in the alternative by alleging Espinoza used a firearm or knowingly caused great bodily harm, which suggests that any use of the firearm did not cause great bodily harm. Although the defect may have been cured by citation to the specific subsection of the statute, here, the information charged Espinoza with violating subsection 775.087(2), not subsection 775.087(2)(a)3. as required." (citing Bienaime v. State, 213 So. 3d 927, 929 (Fla. 4th DCA 2017) )).
Because Latimore challenges a substantive defect in the charging information, as opposed to a technical one, his claim can be raised anytime under rule 3.800(a). State v. Gray, 435 So. 2d 816, 818 (Fla. 1983) (rev'd on other grounds).
The summary denial of Latimore's 3.800 motion is reversed and the cause is remanded to the trial court to impose a legal sentence on the armed robbery charge, given the allegations in the information and the findings of the jury.
Latimore incorrectly suggests that he should be given a 10-year mandatory minimum on remand because the information alleges that he "carried" a shotgun, something that he assumes violates section 775.087(2)(a) 1. His assumption is directly refuted by Grant v. State, 138 So. 3d 1079, 1086–87 (Fla. 4th DCA 2014).
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REVERSED and REMANDED for resentencing.
EVANDER, C.J. and COHEN, J., concur.