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Robinson v. State

Florida Court of Appeals, First District

April 4, 2017

IVORY LEE ROBINSON, Appellant,
v.
STATE OF FLORIDA, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

         An appeal from an order of the Circuit Court for Alachua County. Mark W. Moseley, Judge.

          Ivory Lee Robinson, pro se, Appellant.

          Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.

          THOMAS, M. K., J.

         Ivory 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 barred.

         Now in 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.

         I. Facts

         In 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).

         Thereafter, 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 Information.

         II. "Illegal Sentence"

         "[T]he 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 1177.

         In 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).

         Accordingly, 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.

         III. Apprendi & State-Issued Informations

         The 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."[1] 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 reasonable doubt.

         The 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. 2151 (2013).

         The 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).

         A state 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).

         A 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.

         In 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 were satisfied.

         The 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 ...


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