FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
appeal from an order of the Circuit Court for Alachua County.
Mark W. Moseley, Judge.
Lee Robinson, pro se, Appellant.
Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant
Attorney General, Tallahassee, for Appellee.
THOMAS, M. K., J.
Lee Robinson, defendant, appeals an order denying his rule
3.800(a) motion to correct illegal sentence, in which he
challenges a twenty-five year mandatory minimum sentence
imposed under the "10-20-Life" law. See
§ 775.087, Fla. Stat. In the first claim, he asserts he
was never found in actual possession of a firearm. As this
claim was raised and disposed of in a prior appeal, it is
his second claim and more than thirteen years after his
conviction and sentence, he proclaims his mandatory minimum
sentence is illegal pursuant to Apprendi v. New
Jersey, 530 U.S. 466 (2000), because: 1) the Amended
Information failed to expressly charge that
"great bodily harm, " as opposed to
"bodily harm, " resulted from his shooting of the
victim in the stomach with a .357 revolver handgun (in
essence, defendant is raising a technical-defect challenge,
in that the Amended Information does not track
precisely the verbiage of the sentencing enhancement
statute); and 2) the "great bodily harm" factor of
the enhancement statute was not precisely submitted
to, and found by the jury beyond a reasonable doubt,
resulting in grounds for a substantive-defect challenge. We
disagree, and affirm his sentence.
2003, the State charged the defendant with attempted
second-degree murder and possession of a firearm by a felon
pursuant to sections 784.045, 782.04 and 790.23, Florida
Statutes (2002). The Amended Information also charged section
775.087, Florida Statutes, the sentencing enhancement
provision, also known as the "10-20-Life" law. The
victim testified at trial and described being shot in the
stomach by the defendant. The victim's injuries required
immediate medical care and hospitalization. The jury found
the defendant guilty on all counts, as charged. In response
to special interrogatories submitted, the jury found: 1)
"the defendant guilty of Attempted Second[-]Degree
Murder, as charged in Count I of the Information;" 2)
that he "possessed and discharged a firearm, and by the
discharge of said firearm caused injury to another
person;" 3) he was guilty of Possession of a Firearm by
a Convicted Felon, as charged in Count II of the Information;
and 4) he was "in actual possession of a firearm."
This Court affirmed the conviction and sentence on direct
appeal. Robinson v. State, 888 So.2d 25 (Fla. 1st
DCA 2004) (unpublished table decision).
the defendant filed a number of post-conviction pleadings
including multiple rule 3.800(a) motions, which asserted no
finding of the "use" of a firearm, failure to find
"actual" possession of a firearm, and use of a
"deadly weapon, " among other claims. All were
unsuccessful. In March 2016, the defendant filed this rule
3.800(a) motion, arguing for the first time since being
charged that the absence of "great bodily harm"
constituted technical and substantive-defects in the Amended
definition of 'illegal sentence' as interpreted by
case law has narrowed significantly since that term was used
in the 1960s and 1970s." Carter v. State, 786
So.2d 1173, 1176 (Fla. 2001). In Davis v. State, 661
So.2d 1193, 1196 (Fla. 1995), the Florida Supreme Court
defined an "illegal sentence" as "one that
exceeds the maximum period set forth by law for a particular
offense without regard to the guidelines." But later,
the contention Davis mandates that only those
sentences that facially exceed the statutory maximums may be
challenged as illegal under rule 3.800(a) was rejected.
State v. Mancino, 714 So.2d 429, 433 (Fla. 1998).
Instead, "[a] sentence that patently fails to comport
with statutory or constitutional limitations is by definition
'illegal.'" Id. Further, "where it
can be determined without an evidentiary hearing that a
sentence has been unconstitutionally enhanced in violation of
the double jeopardy clause, the sentence is illegal and can
be declared so at any time under rule 3.800."
Hopping v. State, 708 So.2d 263, 265 (Fla. 1988).
The Florida Supreme Court thus receded from Davis in
Mancino and Hopping to the extent that
Davis could be read to limit challenges under rule
3.800(a) to only those sentences that exceed the
"statutory maximum." Carter, 786 So.2d at
2014, the Florida Supreme Court addressed the question of
whether a rule 3.800(a) motion is an appropriate vehicle to
attack a defendant's upward-departure sentence under
Apprendi, Blakely v. Washington, 542 U.S.
296 (2004), and Plott v. State, 148 So.3d 90 (Fla.
2014). The Court determined "that upward departure
sentences that are unconstitutionally enhanced in violation
of Apprendi and Blakely fail to comport
with constitutional limitations, and consequently, the
sentences are illegal under rule 3.800(a)."
Plott, 148 So.3d at 95. Recently, however, in
Martinez v. State, No. SC15-1620, 2017 WL 728098
(Fla. Feb. 23, 2017), the Florida Supreme Court declared that
an alleged technical-defect in the charging document, which
was not preserved at the trial level, does not constitute an
"illegal sentence" subject to correction under
Florida Rule of Criminal Procedure 3.800(a).
only the defendant's substantive-defect claim (that
Apprendi factors were not submitted to and found by
the jury) is properly raised by rule 3.800(a) motion.
Apprendi & State-Issued Informations
defendant asserts that pursuant to Apprendi, his
conviction and sentence are illegal, as the Amended
Information did not "precisely" track the
sentencing reclassification statute by charging
"great bodily harm." As a result of Apprendi, certain
facts (though labeled by state law as "sentencing
factors") are regarded as essential elements of the
offense for purposes of the Sixth Amendment's jury-trial
guarantee and the due process requirement of proof beyond a
U.S. Supreme Court's requirement that
Apprendi-type elements be included in all federal
indictments is grounded on the Grand Jury Clause of the Fifth
Amendment and also serves a notice function. Id. at
476. But Apprendi does not affect trial procedure
except when fact-finding is necessary to raise the floor or
ceiling of the authorized sentencing range. See
Blakely; Alleyne v. United States, 133 S.Ct.
Fifth Amendment's Indictment Clause states, in pertinent
part: "[N]o person shall be held to answer for a
capital, or otherwise infamous crime, unless on a
presentation or indictment of a Grand Jury." U.S. Const.
amend. V. The U.S. Supreme Court, to date, has not yet held
the "Fifth Amendment's grand jury indictment
requirement" as applicable to the states. Gosa v.
Mayden, 413 U.S. 665, 668 (1973); Byrd v.
State, 995 So.2d 1008, 1011 (Fla. 1st DCA 2008). The
Sixth Amendment states, in pertinent part: "[I]n all
criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the State
and district wherein the crime shall have been committed . .
. and to be informed of the nature and cause of lent the
accusation." U.S. Const. amend. VI. The states would
have a constitutional obligation to include
Apprendi-type factors in their charging instruments
only if the notice requirement of the Sixth Amendment, which
does apply to the states via Fourteenth Amendment due
process, imposed such a requirement. Duncan v.
Louisiana, 391 U.S. 145, 149 (1968) (holding the Sixth
Amendment right to a jury trial applies to the states through
the Fourteenth Amendment).
legislature is "vested, " subject to constitutional
limitations, "with authority to define the elements of a
crime." Chicone v. State, 684 So.2d 736, 741
(Fla. 1996). "Accordingly, identification of the
elements of a crime which must be charged in a state-issued
information is, at least initially, a question of legislative
intent." Id. The Florida Legislature enacted
the "10-20-Life" sentencing reclassification
statute components as "sentencing factors" rather
than elements of the underlying offense - an act within the
state's established power. McMillan v.
Pennsylvania, 477 U.S. 79, 83 (1986); Patterson v.
New York, 432 U.S. 197, 211 (1977); Speiser v.
Randall, 357 U.S. 513, 523 (1958).
review of the evolution of Apprendi, with emphasis
on precedent addressing charging-document defects and the
relationship to the jury verdict, is necessary here.
Following Apprendi, the United States Supreme Court
issued multiple opinions defining an "Apprendi
factor." See Blakely; Ring v. Arizona,
536 U.S. 584 (2002); Alleyne. In 2001, the Florida
Supreme Court determined that sentencing errors raised under
the Prison Releasee Reoffender Act must be preserved for
review and rejected the assertion that such error was
fundamental. McGregor v. State, 789 So.2d 976, 977
(Fla. 2001). This was likely a precursor to a similar
analysis of Apprendi factors.
2002, the Supreme Court, in United States v. Cotton,
535 U.S. 625 (2002), addressed a defendant's appeal of a
technical-pleading deficiency in a federal indictment in the
absence of a challenge regarding the jury verdict submission.
The defendant asserted the imposition of an illegal sentence
as a result of the indictment's failure to charge the
precise weight of drugs in his possession at the time of
arrest (where amount of drugs was relevant to sentencing
enhancement, but not to underlying offense). Id. at
628. Of note, the defendant did not raise an objection to the
alleged technical-defect in the indictment at the trial
stage. In a unanimous decision written by Justice Rehnquist,
in which the sentence was upheld, the Supreme Court applied
its Apprendi analysis as follows: under the Due
Process Clause of the Fifth Amendment and the notice and jury
trial guarantees of the Sixth Amendment, any factor (other
than prior convictions) that increases the maximum penalty
for a crime must be: 1) charged in an indictment; 2)
submitted to the jury; and 3) proven beyond a reasonable
doubt. Id. at 627. However, the Court found that an
overall record review, with an emphasis on the jury verdict,
confirmed that the three-fold Apprendi requirements
Supreme Court, in Cotton, further detailed the
deficiency in the indictment did not present a jurisdictional
weakness for failure to charge a crime, and also, the
omission of the sentencing enhancement factor in the
indictment did not justify vacating the enhanced ...