final until disposition of timely filed motion for rehearing.
Appeal under Florida Rule of Appellate Procedure 9.141 (b)(2)
from the Circuit Court for Miami-Dade County No. 77-33454A,
Stacy D. Glick, Judge.
J. Martinez, Public Defender, and Jeffrey Paul DeSousa,
Assistant Public Defender, for appellant.
Jo Bondi, Attorney General, and Douglas J. Glaid, Senior
Assistant Attorney General, for appellee.
SALTER, FERNANDEZ and LOGUE, JJ.
Eric Knight appeals the denial of his Florida Rule of
Criminal Procedure 3.800(a) motion to correct an illegal
sentence. As the motion alleged, Knight was sentenced in
Count II for an uncharged offense. This was fundamental
error. As such, the denial of the motion is reversed and
was charged in Count II of the information with robbery based
on the taking of property "by force, violence, assault
or putting in fear . . . in violation of 812.13 Florida
Statutes . . . ." These are the elements of a simple
robbery, a second-degree felony under section 812.13(2)(c),
Florida Statutes (1977), for which the maximum sentence is 15
years under section 775.082(3)(c), Florida Statutes (1977).
armed robbery is committed, under section 812.13(2)(a),
Florida Statutes (1977): "If in the course of committing
the robbery the offender carried a firearm or other deadly
weapon, then the robbery is a felony of the first degree,
punishable by imprisonment for a term of years not exceeding
life imprisonment . . . ." In this case, the recitation
in Count II omits both the statutory subsection and the
element of armed robbery - possession of a firearm by the
defendant. As a result of the omissions, Count II did not
allege the crime for which Knight was sentenced.
the shortcomings in the Count II allegations, Knight was
sentenced to life in prison for the robbery.
filed a Rule 3.800(a) motion to correct the illegal sentence
on Count II. He argued that because Count II did not charge
the essential elements of the crime of armed robbery, he
could only be sentenced to the 15 year maximum for the
charged crime, simple robbery, as a second degree felony. The
trial court denied Knight's motion. This appeal followed.
information is fundamentally defective where it fails to cite
a specific section and totally omits an essential element of
the crime." Weatherspoon v. State, 214
So.3d 578, 584 (Fla. 2017) (quoting Figueroa v.
State, 84 So.3d 1158 (Fla. 4th DCA 2012)); State v.
Gray, 435 So.2d 816, 818 (Fla. 1983).
Weatherspoon explained the origins of the rule:
In addition to the violation of a defendant's right to be
fully informed of the charges against him under article I,
section 16, of the Florida Constitution, a defendant's
right to due process under article I, section 9, is denied
when there is a conviction on a charge not made in the
information or indictment:
Due process of law requires the State to allege every
essential element when charging a violation of law to provide
the accused with sufficient notice of the allegations against
him. . . . For an information to sufficiently charge a crime
it must follow the statute, clearly charge each of the
essential elements, and ...