Xevrick J. LATIMORE a/k/a Michael Latimore, Appellant,
STATE of Florida, Appellee.
FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Appeal from the Circuit Court for St. Johns County, Howard M.
Xevrick J. Latimore, a/k/a Michael Latimore, Punta Gorda, pro
Moody , Attorney General, Tallahassee, and Kellie A. Nielan ,
Assistant Attorney General, Daytona Beach, for Appellee.
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.
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
the armed robbery charge, the information charged that
[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.
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
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 ...