Ivory Lee Robinson v. State of Florida

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA

IVORY LEE ROBINSON, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED

v. CASE NO. 1D16-1988

STATE OF FLORIDA,

Appellee.

_____________________________/

Opinion filed April 4, 2017.

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

2
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

3
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,

4
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.

1
It is important to distinguish between “enhancement” of penalty laws and
“reclassification” of offense laws. Admittedly, in some instances such a distinction
may be without a difference in its practical effect, but the legislature has chosen to
make a distinction. Enhancement is commonly associated with the province of the
judge in sentencing, as in the case of habitual offenders, section 775.084, and the
wearing of a mask, section 775.0845. Reclassification speaks to the degree of the
crime charged, and in legislative application, appears to attach at the time the
indictment or information is filed and not at the time a conviction is obtained.
Section 775.081 “classifies” felonies. Section 775.087(1) “reclassifies” all felonies
with specified exceptions when certain conditions attend to the commission of the
crimes. Cooper v. State, 455 So. 2d 588, 589 (Fla. 1st DCA 1984). Subsections (2)
and (3) of section 775.087, Florida Statutes, “enhance” the penalty.
5
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

6
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.

7
 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

8
not justify vacating the enhanced sentence. 535 U.S. at 626. The Court explained

the real threat then to the:

‘fairness, integrity, or public reputation of judicial proceedings’ would
be if respondents, despite the overwhelming and uncontroverted
evidence that they were involved in a vast drug conspiracy, were to
receive a sentence prescribed for those committing less substantial
crimes because of an error that was never objected to at trial.

Id. at 634. Accordingly, Apprendi-type element satisfaction could be accomplished

despite charging deficiencies.

In 2006, in a landmark decision, the United States Supreme Court declared

Apprendi violations no longer constitute per se fundamental error. See Washington

v. Recuenco, 548 U.S. 212, 222 (2006). The Court announced:

Failure to submit a sentencing factor to the jury is not “structural”
error. If a criminal defendant had counsel and was tried by an
impartial adjudicator, there is a strong presumption that most
constitutional errors are subject to harmless-error analysis. E.g., Neder
v. United States, 527 U.S. 1, 8, 119 S.Ct. 1827, 144 L.Ed. 2d 35. Only
in rare cases has this Court ruled an error ‘structural,’ thus requiring
automatic reversal. In Neder, the Court held that failure to submit an
element of an offense to the jury - there, the materiality of false
statements as an element of the federal crimes of filing a false income
tax return, mail fraud, wire fraud, and bank fraud, see id. at 20-25, 119
S.Ct 1827 – is not structural, but is subject to Chapman’s harmless-
error rule, 527 U.S. at 7-20, . . . Apprendi makes clear that “[a]ny
possible distinction between an ‘element’ of a felony . . . and a
‘sentencing factor’ was unknown…during the years surrounding our
Nation’s founding.” 530 U.S. at 478, 120 S. Ct. 2348. Accordingly,
the Court has treated sentencing factors, like elements, as facts that
have to be tried to the jury and proved beyond a reasonable doubt.

Id. at 213. Following Recuenco, even failure to submit an Apprendi factor to the

9
jury was not considered structural error, and therefore, not a basis for a per se

reversal on direct appeal.

In Galindez v. State, 955 So. 2d 517 (Fla. 2007), the Florida Supreme Court

applied the Recuenco harmless-error application to Apprendi and Blakely

challenges. The Florida Supreme Court detailed, “...[T]o the extent some of our

pre-Apprendi decisions may suggest that the failure to submit factual issues to the

jury is not subject to harmless error analysis, Recuenco has superseded them.” Id.

at 522-523.

A year later, the Florida Supreme Court in Deparvine v. State, 995 So. 2d

351 (Fla. 2008), distinguished the holding and application of its prior decision in

State v. Gray, 435 So. 2d 816 (Fla. 1983), and addressed preservation and waiver

of alleged Apprendi error. Specifically, the court previously held, “[G]enerally, if

an indictment or information fails to completely charge a crime under the laws of

the state, the defect can be raised at any time. Gray, 435 So. 2d at 818 (emphasis

added). However, now “where a defendant waits until after the State rests its case

to challenge the propriety of an indictment, the defendant is required to show not

that the indictment is technically defective but that it is so fundamentally defective

that it cannot support a judgement of conviction.” Deparvine, 995 So. 2d at 373

(citing Ford v. State, 802 So. 2d 1121, 1130 (Fla. 2001) (emphasis added)). Per

Deparvine, there exist two avenues for raising an Apprendi error. The first requires

10
a timely objection to the technical-defect. Technical errors may be remedied at the

trial level by dismissal or an order for particulars. Secondly, if no timely objection

is raised rendering the technical-defect as unpreserved, the defendant may raise, on

appeal, a claim of fundamental right violation, which is subject to harmless error

analysis. Accordingly, following Deparvine, the holding of Gray could no longer

be cited as a basis for per se reversible error as technical-defects were no longer

considered “structural error.”

The Florida Supreme Court later held that the preservation rules of

Deparvine applied to a defendant's challenge to charging documents involving

mandatory minimum sentencing under the “10-20-Life” law. Bradley v. State, 3

So. 3d 1168 (Fla. 2009). The court highlighted the “slightly different” rules

relating to raising sentencing error challenges: 1) when preserved for review by

contemporaneous objection, error may be raised on direct appeal; 2) even if not

originally preserved, rule 3.800(b) provides a defendant with a mechanism to

correct sentencing errors in the trial court at the earliest opportunity and gives

defendants a means to preserve these errors for appellate review even while an

appeal is pending (but before initial brief); 3) rule 3.850 allows a defendant to raise

a sentencing error within two years after the sentence becomes final; and 4) rule

3.800(a) permits “a defendant to allege that the sentence was illegal, that

insufficient credit was awarded for time served, or that the sentencing scoresheet

11
was incorrectly calculated.” Jackson v. State, 983 So. 2d 562, 568 (Fla. 2008)

(citing Brooks v. State, 969 So. 2d 238, 241-42 (Fla. 2007)).

In Price v. State, 995 So. 2d 401 (Fla. 2008), the Florida Supreme Court, in

further distinguishing Gray, recognized a distinction between technical and

substantive-defect challenges to state informations. Price provided a standard for

distinguishing a technical-defect from a substantive-defect in declaring a

substantive-defect (capable of appeal at any time as violation of fundamental right)

as one that “wholly fails to allege any element of the crime . . . . ” Id. at 405.

In 2010, the Florida Supreme Court again reviewed a conviction and

sentence based on an alleged information deficiency. Miller v. State, 42 So. 3d

204, 216 (Fla. 2010). The court announced “...the test for granting relief based on a

defect in the information is actual prejudice to the fairness of the trial” is

applicable to Apprendi challenges to state-issued informations, regardless of an

enhanced sentencing component. Id.

A year later, in Carbarjal v. State, 75 So. 3d 258 (Fla. 2011), the Florida

Supreme Court further distinguished the application of Gray. The Court advised:

We have also explained, however, that while a charging instrument is
essential to invoke the circuit court’s subject matter jurisdiction,
‘defects in charging documents are not always fundamental where the
omitted matter is not essential, where the actual notice provided is
sufficient, and where all the elements of the crime in question are
proved at trial.’

Id. at 262 (quoting Gray, 435 So. 2d at 818).
12
 The Eleventh Circuit agreed with the Florida Supreme Court’s holding that

the Sixth Amendment did not require an indictment specify aggravating

circumstances, even in a capital case. Grim v. Secy., Fla. Dep’t of Corr., 705 F.3d

1284 (11th Cir. 2013); see also Winkles v. State, 894 So. 2d 842, 846 (Fla. 2005).

Despite precedent provided by the United States Supreme Court and Florida

Supreme Court, conflict exists among the district courts of Florida regarding

treatment of Apprendi defects in state-issued informations. District courts continue

to intermittently cite Whitehead v. State, 884 So. 2d 139 (Fla. 2d DCA 2004),

Rogers v. State, 875 So. 2d 769 (Fla. 2d DCA 2004), Davis v. State, 884 So. 2d

1058 (Fla. 2d DCA 2004), and Daniel v. State, 935 So. 2d 1240 (Fla. 2d DCA

2006), as supporting per se reversible error for technical-defects in charging

documents. See McKenzie v. State, 31 So. 3d 275 (Fla. 2d DCA 2010); Green v.

State, 139 So. 3d 460 (Fla. 1st DCA 2014); Lewis v. State, 177 So. 3d 64 (Fla. 2d

DCA 2015). However, the Florida Supreme Court’s recent opinion in Martinez v.

State, No. SC15-1620, 2017 WL 728098 (Fla. Feb. 23, 2017), declares technical-

defects in state-issued charging documents are no longer considered “structural”

constituting per se reversible error and do not qualify as an “illegal sentence”

subject to a rule 3.800(a) challenge. A defendant must raise a timely objection at

the trial court level in order to preserve a technical-defect challenge, or such claim

is waived. In the absence of timely objection, the defendant’s claim survives only
13
if fundamental error is established.

IV. The Amended Information

The subject Amended Information charged:

. . . IVORY LEE ROBINSON, in Alachua County, Florida, on
or about May 26, 2002, unlawfully and by an act imminently
dangerous to another, and evincing a depraved mind regardless of
human life, but without a premediated design to effect the death of
any particular person, did attempt to kill and murder WILLIAM
FRANK MABREY, by shooting William Frank Mabrey, a human
being, with a firearm and/or IVORY LEE ROBINSON did
unlawfully commit a battery upon WILLIAM FRANK MABREY by
actually and intentionally touching or striking said person against said
person’s will, or causing bodily harm to WILLIAM FRANK
MABREY and in the commission of said battery did use a deadly
weapon, to-wit: .357 Llama Comanche Stoger Industries Revolver
Serial Number S830231, and in the course or commission of said
offenses, Ivory Lee Robinson did discharge a firearm; to wit; 357
Llama Comanche Stoger Industries Revolver. Serial Number S83023;
and as a result of the discharge of said firearm, Ivory Lee Robinson
did cause an injury to WILLIAM FRANK MABREY, in violation
of Section 775.087, Florida Statutes, Section 784.045(1)(a)(2), and
Section 782.04(2), Florida Statutes. (L10)

COUNT II: . . . IVORY LEE ROBINSON, in Alachua County,
Florida, on or about May 26, 2002, having been convicted of a felony
in the courts of this state or of a crime against the United States of
America which is designated as a felony or convicted of an offense in
another state, territory or country punishable by imprisonment for a
term exceeding one year, did own or have in his care, custody, actual
possession or control, a certain firearm, to-wit: .357 Llama
Comanche Stoger Industries Revolver Serial Number S830231,
contrary to Section 790.23(1), Florida Statutes. (L5)

(Emphasis added.)

The purpose of an information is to inform the accused of the charge(s)

14
against him, so that the accused will have an opportunity to prepare a defense.

Florida charges the majority of crimes by information.2 Florida Rule of Criminal

Procedure 3.140 provides, “[T]he indictment or information on which the

defendant is to be tried shall be a plain, concise, and definite written statement of

the essential facts constituting the offense charged.” In addition, Florida Rule of

Criminal Procedure 3.140(d) (1) further requires the information to recite:

. . . official or customary citation of the statute, rule, regulation or
other provision of law that the defendant is alleged to have violated.
Error in or omission of the citation shall not be grounds for dismissing
the count or reversal of a conviction based thereon if the error or
omission did not mislead the defendant to the defendant’s prejudice.

Rule 3.140 allows a court to order the prosecuting attorney to furnish a statement

of particulars when the information fails to inform the defendant sufficiently to

prepare a defense. With respect to any defect,

no indictment or information, or any count thereof, shall be dismissed
or judgement arrested, or new trial granted on account of any defect in
the form of the information or of misjoinder of offenses or for any
cause whatsoever, unless the court shall be of the opinion that the
indictment or information is so vague, indistinct, and indefinite as to
mislead the accused and embarrass him or her in the preparation of a
defense or expose the accused after conviction or acquittal to
substantial danger of a new prosecution for the same offense.

Fla. R. Crim. P. 3.140(o). These sections reveal the duty of the State to give clear

2
In Florida, a capital crime must be charged by indictment; all other felonies may
be charged by information. See Fla. CONST. art. I, section 15(a). If the Indictment
Clause applied to the states, Florida could not prosecute non-capital felonies by
information.
15
and adequate notice, but with the disclaimer that defects are not grounds for

automatic reversal or dismissal. See Leeman v. State, 357 So. 2d 703, 705 (Fla.

1978).

Technical-Defect Challenge

Here, defendant asserts the Amended Information is technically flawed

pursuant to Apprendi, which he argues requires the phrase “great bodily harm” be

precisely charged as an essential element of the enhancement provision.

Accordingly, he asserts such an omission constitutes per se reversible error and

cannot be cured by jury verdict. The defendant claims error based on a semantic

comparison arguing that the information does not sufficiently charge the required

Apprendi elements. In support, the defendant cites to the Second District’s

opinions in Daniel and Whitehead. These cases presented challenges to minimum

mandatory sentences and the charging documents did not track the language of the

enhancement statute. In both, the jury ultimately found the specific factors

pursuant to special interrogatories. Daniel, 935 So. 2d at 1241; Whitehead, 884 So.

2d at 139. The Second District reversed both sentences, finding that the jury

verdict could not cure the “defects” in the charging document and an information

must precisely track the sentencing enhancement statute. Id. However, Daniel and

Whitehead are readily distinguishable and have now been abrogated by the Florida

Supreme Court in Martinez, No. SC15-1620, 2017 WL 728098, at *4. In Daniel,

16
the State conceded error on a portion of the sentencing and the case involved

multiple defendants- a fact pattern demanding greater specificity in pleading.

Daniel, 935 So. 2d at 1241.

Technical-defects in a charging document are reviewed differently than the

failure to assert an essential element of the crime. Gray, 435 So. 2d at 818. “Great

bodily harm” is not an essential element of attempted second-degree murder or

possession of a firearm by a convicted felon, but rather, it allows for

reclassification of the underlying crimes pursuant to section 775.087, Florida

Statutes. Because the alleged defect was not the omission of an essential element

of the crime, the defect is fundamental only if due process was denied. Connolly

v. State, 172 So. 3d 893, 904 (Fla. 3d DCA 2015); Delgado v. State, 43 So. 3d 132,

133 (Fla. 3d DCA 2010) (“An information is fundamentally defective only where it

totally omits an essential element of the crime or is so vague, indistinct or

indefinite that the defendant is misled or exposed to double jeopardy.”); State v.

Wimberly, 459 So. 2d 456, 458–59 (Fla. 5th DCA 1984) (“There is a difference

between an information that completely fails to charge a crime and one where the

charging allegations are incomplete or imprecise. The former is fundamentally

defective. However, where the information is merely imperfect or imprecise, the

failure to timely file a motion to dismiss under Rule 3.190(c) waives the defect and

it cannot be raised for the first time on appeal . . . . If the information recites the

17
appropriate statute alleged to be violated, and if the statute clearly includes the

omitted words, it cannot be said that the imperfection of the information prejudiced

the defendant in his defenses.”) (quoting Jones v. State, 415 So. 2d 852, 853 (Fla.

5th DCA 1982)); Brewer v. State, 413 So. 2d 1217, 1221 (Fla. 5th DCA 1982) (en

banc) (finding no fundamental error where the deficiency of the charging

document was not a total omission of an essential element of the crime); Kane v.

State, 392 So. 2d 1012, 1013 (Fla. 5th DCA 1981); State v. Cadieu, 353 So. 2d

150, 151 (Fla. 1st DCA 1977) (“The law does not favor a strategy of withholding

attack on the information until the defendant is in jeopardy, then moving to bar the

prosecution entirely.”).

Florida does not view Apprendi type facts as within the essential elements

pleading requirement because Apprendi-elements do not alter the offense itself (as

opposed to the punishment that can be imposed). The different levels of

punishment, under state law, do not create separate offenses. Florida now adopts

the position that the requirements of the Sixth Amendment regarding notice can be

satisfied without necessarily and precisely alleging Apprendi-type elements in the

charging documents. See Deparvine; Grim v. Sec’y Fla. Dep’t of Corr., 705 F.3d

1284 (11th Cir. 2013); Miller v. State, 42 So. 3d 204 (Fla. 2010); DuBoise v. State,

520 So. 2d 260 (Fla. 1988). Additionally, the Florida Supreme Court has noted “it

will be a rare occasion that an information tracking the language of the statute

18
defying the crime will be found inefficient to put the accused on notice of the

misconduct charged.” Price, 995 So. 2d at 405.

Defendant’s appeal of the technical-defect was initiated under rule 3.800(a),

as opposed to rule 3.800(b). Accordingly, the asserted technical charging error

must be deemed waived by the defendant's lack of a contemporaneous objection

prior to the jury verdict and before the sentence was imposed in 2003. To preserve

error for appellate review, a contemporaneous, specific objection must be made

during trial. Jackson v. State, 983 So. 2d 562, 568 (Fla. 2008); Gore v. State, 964

So. 2d 1257, 1265 (Fla. 2007). Further, the alleged pleading insufficiency at issue

here does not result in an "illegal sentence" subject to correction at any time under

rule 3.800(a). The Florida Supreme Court recognizes that a defendant can waive

the failure to precisely charge grounds for a mandatory minimum under the “10-

20-Life” law. See Martinez; Nelson v. State, 191 So. 3d 950 (Fla. 4th DCA 2016);

Rolling v. State, 41 Fla. L. Weekly D1906 (Fla. 3rd DCA Aug. 17, 2016);

Connolly v. State, 172 So. 3d 893 (Fla. 3d DCA 2015); Bradley v. State, 3 So. 3d

1168 (Fla. 2009).

The technical-defect challenge raised by the defendant is also contrary to the

“Criminal Appeal Reform Act of 1996,” which provides that “[a]n appeal may not

be taken from a judgment or order of a trial court unless a prejudicial error is

alleged and is properly preserved or, if not properly preserved, would constitute

19
fundamental error.” § 924.051(3), Fla. Stat. An issue is not preserved within the

meaning of the statute unless it was “timely raised before, and ruled on by, the trial

court.” § 924.051(1)(b) Fla. Stat., (Supp. 1996); see Latson v. State, 193 So. 3d

1070 (Fla. 1st DCA 2016) (Winokur, J., concurring). Here, the defendant did not

raise any objection as to the technical insufficiency of the Amended Information

prior to the jury verdict. Accordingly, fundamental error must be established to

maintain a viable argument on appeal.

Substantive-Defect Challenge

A charging document that “references a specific section of the criminal

code” sufficiently detailing “all the elements of the offense” may support a

conviction where the pleading otherwise fails to include an essential element of the

crime. DuBoise v. State, 520 So. 2d 260, 265 (Fla. 1988); Figeroa v. State, 84 So.

2d 1158, 1161 (Fla. 2d DCA 2012). However, “a conviction on a charge not made

by the indictment or information is a denial of due process[,]” and an indictment or

information, that “wholly omits to allege one or more of the essential elements of

the crime” cannot support a conviction for that crime. Gray, 435 So. 2d at 818.

This is a “defect that can be raised at any time-before trial, after trial, on appeal, or

by habeas corpus.” Id.

Defendant also claims that his conviction and sentence are illegal, as the

Apprendi factor of “great bodily harm” was not charged in the Amended

20
Information and found by the jury beyond a reasonable doubt. Relying again on

Daniel, the defendant argues that a jury verdict cannot cure any alleged

deficiencies in the charging document. He also asserts that the jury did not find all

sentencing factors under section 775.087, Florida Statutes, in violation of

Apprendi. The trial court expressly denied defendant’s argument that the

Amended Information did not precisely track the enhancement statute - finding that

even though the language is not precise, it is clear, and the jury found beyond a

reasonable doubt that defendant discharged a firearm causing “great bodily harm.”

Here, the trial court cited Gentile v. State, 87 So. 3d 55 (Fla. 4th DCA 2012),

in denying defendant’s rule 3.800(a) motion. In Gentile, the information alleged

the defendant committed the offense with a deadly weapon. Id. at 57. The Fourth

District determined that by inference, the jury’s verdict found the defendant guilty

of using a deadly weapon because it found him guilty “as charged in the

information.” Id. Thus, the verdict form’s reference to the information was

sufficient to support Gentile’s sentence reclassification.

The Florida Supreme Court has consistently held a jury verdict may “cure”

an Apprendi defect in a state-issued information. See Galindez v. State, 955 So. 2d

517 (Fla. 2007); Miller; Price; Grim. Post-2006, failure to submit a sentencing

factor to a jury is no longer considered structural error. Such failure is subject to

harmless error analysis, if the error is of a fundamental nature. Recuenco, 548 U.S.

21
at 221. Here, any defect in the charging document, namely failure to allege “great

bodily harm” as opposed to “bodily harm,” was cured by the victim’s testimony at

trial and the jury verdict. The jury found the defendant guilty as charged, which

included the factual finding the defendant shot the victim. We find this sufficient

to satisfy “great bodily harm” as a required element of the sentencing

enhancement.

If a pleading should require an identification of the particular injury,

additional detail is commonly seen as flowing from the factual specificity

requirement rather than the essential elements requirement. See United States v.

Gayle, 967 F.2d 483 (11th Cir. 1992). Here, the record on appeal confirms Count I

of the Amended Information charged that defendant “did attempt to kill . . . by

shooting . . . with a firearm . . . causing bodily harm . . . did use a deadly weapon . .

. did possess a firearm . . . did discharge a firearm . . . did cause injury . . . in

violation of Section 775.087, Florida Statutes, Section 784.045(1)(a)(2), and

Section 782.04(2), Florida Statutes.” We agree with the State. The fact the

defendant shot the victim, coupled with the statutory citation, was sufficient to give

notice of the “great bodily harm” element of section 775.087, Florida Statutes. See

Coke v. State, 955 So. 2d 1216, 1217 (Fla. 4th DCA 2007) (concluding that an

information, which charged the defendant with aggravated battery by “shooting

[the victim] in the legs,” was sufficient to advise the defendant of the “great bodily

22
harm” element, as language was more specific than “simply alleging great bodily

harm”); Nelson v. State, 191 So. 3d at 952-53 (concluding the information

indicating that the victim was “shot” was sufficient to provide notice of the “great

bodily harm” element).

V. Fundamental Error & Harmless Error

A review of the Amended Information and the record demonstrates

fundamental error was not present because: 1) the Amended Information did not

omit an essential element of the charged offenses; 2) the Amended Information

referenced section 775.087, Florida Statutes, in the charging document; 3) the

defendant had notice the State would be seeking a reclassification of his conviction

under section 775.087, Florida Statutes, based on the defendant’s personal

possession of a firearm during the commission of the underlying offenses; and 4)

the defendant claims no surprise or prejudice in the preparation or presentation of

his defense and establishes no other grounds of actual prejudice.

The Florida Supreme Court has clarified that, although a specific finding in

an interrogatory on the verdict form is preferable, what is ultimately required is a

“clear jury finding.” State v. Iseley, 944 So. 2d 227, 231 (Fla. 2006). The Court

emphasized:

[A]ll that is required for the application of a reclassification or
enhancement statute to an offense is a clear jury finding of the facts
necessary to the reclassification or enhancement ‘either by (1) a
specific question or special verdict form (which is the better practice),
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 or (2) the inclusion of a reference to [the fact necessary for
reclassification] in identifying the specific crime for which the
defendant is found guilty.’

Gentile, 87 So. 3d at 57 (Fla. 4th DCA 2012) (quoting Sanders v. State, 944 So. 2d

203, 207 (Fla. 2006) (quoting Iseley, 944 So. 2d at 231)).

The test for granting relief based upon a substantive-defect in the charging

document is “actual prejudice.” Gray, 435 So. 2d at 818. Because the defect did

not pertain to an essential element of the crime, the defect is fundamental only if

the defendant demonstrates that he was denied due process. In other words,

because the defendant failed to make a contemporaneous objection, the defect was

not fundamental error unless he is able to demonstrate insufficient notice that a

conviction for second-degree murder and possession of a firearm by a convicted

felon could subject him to a reclassification under section 775.087, Florida Statutes

(2002).

“An illegal sentence subject to correction under rule 3.800(a) must be one

that no judge under the entire body of sentencing laws could possibly impose under

any set of factual circumstances.” Martinez at *4 (citing Wright v. State, 911 So.

2d 81, 83 (Fla. 2005); see also Carter v. State, 786 So. 2d 1173, 1181 (Fla. 2001).

The illegality must be of a fundamental nature and clear from the face of the

record. Wright, 911 So. 2d at 83-84. We find no such fundamental error.

Prior decisions of this Court in Boyce v. State, 202 So. 3d 456 (Fla. 1st DCA

24
2016), and Arnett v. State, 128 So. 3d 87 (Fla. 1st DCA 2013), are factually

distinguishable. 3 Furthermore, clarity has been provided by the Florida Supreme

Court in Martinez at *4.

Conclusion

In the wake of Galindez, Deparvine, and Martinez, the menu options for a

defendant’s Apprendi-error appeal have been limited. Technical-defects in a

charging document are no longer “structural” constituting per se reversible error.

A defendant’s failure to raise a timely objection to a charging document’s

technical insufficiency, prior to a jury verdict, results in waiver of a pure pleading

challenge. Subsequently, a defendant may only appeal by arguing constitutional

error, which is subject to harmless error review.

Defendant failed to properly preserve the technical-defect claim, and his

“illegal sentence” challenge is not cognizable under a rule 3.800(a) motion. His

substantive challenge failed to establish fundamental error. Alternatively, even if

3
In Arnett, the defendant was charged with possession of a firearm by a convicted
felon. 128 So. 3d at 87. The information did not charge “actual possession” of a
firearm (key element of the underlying charge), nor did it charge the sentencing
reclassification or enhancement. Id. at 88. This Court reversed on the basis that the
“enhancement must be clearly charged in the information.” Id. (emphasis added).
In Boyce, this Court reversed an enhanced sentence when the information failed to
charge “actual possession” of a firearm despite the underlying burglary crime
involving multiple defendants. 202 So. 3d at 456. The information failed to detail
whether the defendant was being charged under the principal or accomplice theory
and was silent with respect to the State’s intent to seek the enhancement sentence;
The State did not provide notice of its intent to seek sentencing enhancement
against Boyce until after the jury trial. Id.
25
the Apprendi defects asserted by the defendant constitute a constitutional violation,

we find the error to be harmless.

For these reasons, we affirm the trial court’s denial of defendant’s rule

3.800(a) motion.

WOLF and BILBREY, J.J., CONCUR.

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