IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT
NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
STATE OF FLORIDA,
Appellant,
v. Case No. 5D16-429
ROBERT FRED WOODALL, III,
Appellee.
________________________________/
Opinion filed March 3, 2017
Appeal from the Circuit Court
for Orange County,
Alan S. Apte, Judge.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Robin A. Compton,
Assistant Attorney General, Daytona
Beach, for Appellant.
William R. Ponall, of Ponall Law,
Maitland, and Thomas Sommerville, of
Law Offices of Thomas Sommerville,
Orlando, for Appellee.
PER CURIAM.
The State of Florida timely appeals Robert Woodall’s resentencing for aggravated
battery with a firearm pursuant to Florida Rule of Criminal Procedure 3.800(a), arguing
that the lower court failed to reimpose Woodall’s twenty-year mandatory minimum
sentence after it erroneously concluded that the jury did not make a clear finding that
Woodall discharged a firearm during the offense. We agree.1
Section 775.087(2)(a)2., Florida Statutes (2004), requires a twenty-year
mandatory minimum sentence to be imposed if a person is convicted of a listed offense,
including aggravated battery, and discharging a firearm during the commission of that
offense. “[M]andatory minimum sentencing enhancements are nondiscretionary and,
therefore, trial courts lack the authority to refuse to apply them.” State v. Kremer, 114 So.
3d 420, 421 (Fla. 5th DCA 2013) (citing State v. Moore, 854 So. 2d 832, 833-34 (Fla. 5th
DCA 2003)). The mandatory minimum sentence must be supported by a “clear jury
finding” that Woodall discharged a firearm during the offense, which “can be
demonstrated either by (1) a specific question or special verdict form (which is the better
practice), or (2) the inclusion of a reference to a firearm in identifying the specific crime
for which the defendant is found guilty.” State v. Iseley, 944 So. 2d 227, 230 (Fla. 2006)
(citing Tucker v. State, 726 So. 2d 768, 771-72 (Fla. 1999); State v. Overfelt, 457 So. 2d
1385, 1387 (Fla. 1984)).
The General Verdict and the Special Verdict, independently and together,
constituted clear jury findings that Woodall discharged a firearm. In the General Verdict,
the jury found Woodall “guilty of Aggravated Battery with a Firearm, as charged in the
Information.” The information specifically alleged that Woodall committed aggravated
battery with a firearm, discharged the firearm during the offense, and was subject to the
1The State candidly acknowledges its mistaken concession of error below, which
resulted in the trial court granting Woodall’s Rule 3.800(a) motion. While we are inclined
to agree that the State should not have conceded the illegality of Woodall’s sentence, we
recognize having done so, the State is now precluded from complaining about it on
appeal.
2
twenty-year mandatory minimum sentence. In the Special Verdict, the jury found that
Woodall “did during the course of the crime, discharge a firearm and as a result of the
discharge, death or great bodily harm was inflicted upon the victim[.]”
The General Verdict
Despite the General Verdict’s clear reference to the information, including the
specific allegation of discharging a firearm, Woodall convinced the lower court that the
General Verdict did not constitute a clear jury finding because the jury was erroneously
instructed on alternative theories of aggravated battery, creating the possibility that it
found him guilty without discharging a firearm. Despite being instructed on alternative
theories, however, the jury found Woodall guilty of aggravated battery “with a firearm as
charged in the Information,” which alleged aggravated battery by one theory—use and
discharge of a firearm. Moreover, the alternative theories were causally linked in this
case because Woodall shot the victim in the ankle, making impossible his contention that
the jury could have found aggravated battery by causing great bodily harm without
discharging a firearm.
The Special Verdict
Consistent with the evidence, the jury found in the Special Verdict that Woodall
discharged a firearm causing the victim great bodily harm. Thus, the Special Verdict not
only contains a clear jury finding of discharge, it further refutes Woodall’s claim that the
jury could have found him guilty of aggravated battery without discharging a firearm.
Notwithstanding this clear finding, Woodall argues that it is insufficient because there is
no indication that it was made “beyond a reasonable doubt,” as required by Alleyne v.
United States, 133 S. Ct. 2151 (2013). Alleyne held that facts used to increase the
3
mandatory minimum sentence are elements of the crime that must be submitted to the
jury and found beyond a reasonable doubt. Id. at 2158. Woodall argues that the trial
court failed to instruct the jury that its findings in the Special Verdict must be beyond a
reasonable doubt as reflected in Florida Standard Jury Instruction (Criminal) 3.3(d).2
Without this instruction or an express indication that the special finding was made beyond
a reasonable doubt, Woodall claims that there is no way to determine if the jury found
that he discharged a firearm beyond a reasonable doubt.
Woodall’s reliance on the standard instruction is misplaced because that
instruction did not exist at his 2006 trial. Cf. Johnson v. State, 903 So. 2d 888, 899 (Fla.
2005) (rejecting claim that trial counsel was ineffective in failing to challenge standard
instruction as unconstitutional before being declared so by supreme court). Despite the
nonexistence of this instruction, we conclude that the instructions given at trial adequately
required the jury to make its findings, including the discharge finding, beyond a
reasonable doubt. Specifically, the jury was instructed that the presumption of innocence
“stays with the defendant as to each material allegation in the Information through each
stage of the trial unless it has been overcome by the evidence to the exclusion of and
2
In 2008, the Florida Supreme Court added the following instruction to Florida
Standard Jury Instruction (Criminal) 3.3(d):
If you find that (defendant) committed (felony identified in §
775.087(2)(a) 2, Fla. Stat.) and you also find beyond a
reasonable doubt that during the commission of the crime,
[he] [she] discharged a [firearm] [destructive device], you
should find the defendant guilty of (felony) with discharge of a
[firearm] [destructive device].
In re Standard Jury Instructions in Criminal Cases--Report No. 2007-08, 995 So. 2d 489,
491 (Fla. 2008) (emphasis added).
4
beyond a reasonable doubt.” Woodall’s discharge of a firearm was a material allegation
in the information to which the jury was instructed that the beyond a reasonable doubt
standard applied.
In addition, Florida law does not require an express indication that special findings
are made beyond a reasonable doubt when such indication may be inferred from the
record. In Amos v. State, 833 So. 2d 841, 842 (Fla. 4th DCA 2002), the Fourth District
held that the standard in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), that facts
used to increase the statutory maximum sentence be “submitted to a jury, and proved
beyond a reasonable doubt,” was satisfied without an express indication that the jury
made its finding beyond a reasonable doubt. The court reasoned as follows:
As to the fact of discharging a firearm, the record in this
case indicates that this fact was submitted to the jury, and the
jury found beyond a reasonable doubt that Amos discharged
a firearm. The jury convicted Amos of “[a]ggravated Battery
with a Firearm, a lesser included offense, as contained in the
Information.” Because the information accused Amos of
“shooting [the victim] with a firearm” and the verdict
specifically refers to the information, and because Amos was
convicted of aggravated battery with a firearm, the finding that
Amos discharged a weapon is inherent in the jury's verdict.
Cameron v. State, 804 So. 2d 338, 344 n.11 (Fla. 4th DCA
2001) (rejecting Apprendi challenge for lack of a specific
finding of death or injury when such finding was inherent in
the conviction for manslaughter) (citing Tucker v. State, 726
So. 2d 768 (Fla. 1999) (holding that jury verdict of ‘guilty of
attempted first-degree murder with a firearm’ supported
enhanced sentence for use of a firearm)).
Amos, 833 So. 2d at 842-43. The same logic applies in this case. Because the
information specifically alleged that Woodall discharged a firearm and the jury found
Woodall guilty “as charged in the information,” the jury’s finding of discharge, beyond a
reasonable doubt, was inherent in the verdict. Alleyne extended the Apprendi standard
5
to mandatory minimum sentences. It follows that if cases after Apprendi do not require
an express indication that the clear jury finding is “beyond a reasonable doubt,” cases
after Alleyne do not either. See Lee v. State, 130 So. 3d 707, 710-11 (Fla. 2d DCA 2013)
(applying “clear jury finding” standard post-Alleyne and concluding that Alleyne error is
subject to harmless error analysis like Apprendi), rev. granted, No. SC14-416 (Fla. Nov.
17, 2016).
Woodall also claims the Special Verdict was “incorrect” because it allowed the jury
to find facts necessary to impose the twenty-five-year mandatory minimum—discharge
causing great bodily harm—rather than a simple finding of discharge required for the
twenty-year mandatory minimum. Under such circumstances, Woodall would have been
subject to a twenty-five-year mandatory minimum sentence under section
775.087(2)(a)3., Florida Statutes (2004), except that he was not charged with aggravated
battery by causing great bodily harm. When the greater mandatory minimum is imposed
without a proper allegation in the information, the remedy is to impose the twenty-year
mandatory minimum because there is still a clear finding of discharge. See McKenzie v.
State, 31 So. 3d 275, 277 (Fla. 2d DCA 2010) (remanding for imposition of twenty-year
mandatory minimum sentence where information did not support twenty-five year
mandatory minimum sentence). The twenty-year mandatory minimum sentence is
appropriate because the charging document alleged that Woodall discharged a firearm
and the Special Verdict found that Woodall discharged a firearm. The surplus finding of
great bodily harm did not negate the discharge finding, especially in this case where the
great bodily harm resulted solely from the discharge.
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Finally, Woodall argues that the Special Verdict was “incomplete” because it did
not give the jury the choice of finding that Woodall did not discharge a firearm. The choice
urged by Woodall was not only unnecessary, it was inappropriate because it would have
resulted in an inconsistent verdict if the jury had found Woodall guilty “as charged in the
Information,” but then found that he did not discharge a firearm. See, e.g., Starling v.
State, 152 So. 3d 868, 868 (Fla. 1st DCA 2014) (reversing conviction for robbery with a
weapon based on truly inconsistent verdict finding that appellant did not possess firearm
during commission of robbery); Gerald v. State, 132 So. 3d 891, 895 (Fla. 1st DCA 2014)
(reversing conviction for aggravated assault with firearm based on inconsistent finding
that appellant did not possess firearm). Below, Woodall used this supposed defect in the
Special Verdict to convince the trial court that he was deprived of the opportunity for a
jury pardon, but there was no defect.
In summary, we agree with the State’s contention that the General Verdict and
Special Verdict were “clear jury findings” beyond a reasonable doubt, that Woodall
discharged a firearm during the aggravated battery, and that Woodall’s arguments do not
render such findings unclear.3 Accordingly, we vacate Woodall’s sentence and remand
for imposition of the mandatory minimum sentence, with credit for the time Woodall has
already served.
VACATED AND REMANDED WITH DIRECTIONS.
SAWAYA and EDWARDS, JJ., and JACOBUS, B.W., Senior Judge, concur.
3We reject, without discussion, the State’s alternative argument that Woodall’s
admission to discharging the firearm, after the lower court had already determined that
the mandatory minimum sentence did not apply, can be used as a basis to reimpose it.
7