Whitehead v. State, 884 So. 2d 139 (Fla. 2d DCA 2004). · Go Syfert
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Whitehead v. State, 884 So. 2d 139 (Fla. 2d DCA 2004). Cases Citing This Book View Copy Cite
“he minimum terms mandated by the '10-20-life' statute, section 775.087(2), cannot be legally imposed unless the statutory elements are precisely charged in the information.”
21 citation events (21 in the last 25 years) across 1 distinct court.
Strongest positive: Lewis v. State (fladistctapp, 2015-10-09)
Treatment trajectory · 2004 → 2026 · click a year to view as-of
2004 2015 2026
Top citers, strongest first. 9 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) Lewis v. State
Fla. Dist. Ct. App. · 2015 · signal: see · quote attribution · 1 verbatim quote · confidence high
he minimum terms mandated by the '10-20-life' statute, section 775.087(2), cannot be legally imposed unless the statutory elements are precisely charged in the information.
discussed Cited as authority (rule) LABRONX BAILEY v. STATE OF FLORIDA
Fla. Dist. Ct. App. · 2019 · signal: cf. · confidence medium
See Rogers v. State, 875 So. 2d 769, 771 (Fla. 2d DCA 2004) ("The grounds for enhancement of a sentence must be charged in the information."); cf. Whitehead v. State, 884 So. 2d 139, 140 (Fla. 2d DCA 2004) (holding that defendant's sentence could not be enhanced based on a jury finding that he discharged a firearm where charging document only charged that he used a firearm).
discussed Cited as authority (rule) Isaac J. Nelson, III v. State of Florida
Fla. Dist. Ct. App. · 2016 · confidence medium
E.g., Whitehead v. State, 884 So.2d 139, 140 (Fla. 2d DCA 2004) (reversing in part the summary denial of a rule 3.800(a). motion where defendant’s sentence included- a twenty-year mandatory minimum for discharging a firearm, but the information charged only use of a firearm).
cited Cited as authority (rule) Young v. State
Fla. Dist. Ct. App. · 2012 · confidence medium
See Adams v. State, 916 So.2d 36, 37 (Fla. 2d DCA 2005); Whitehead v. State, 884 So.2d 139, 140 (Fla. 2d DCA 2004).
discussed Cited as authority (rule) Figueroa v. State
Fla. Dist. Ct. App. · 2012 · confidence medium
Daniel v. State, 935 So.2d 1240, 1241 (Fla. 2d DCA 2006) (quoting Davis v. State, 884 So.2d 1058, 1061 (Fla. 2d DCA 2004)); see also Jaimes, 51 So.3d at 452 (directing entry of a verdict for a lesser-included crime where the defendant was convicted of an offense based on elements that were never charged, constituting fundamental error); McKenzie v. State, 31 So.3d 275, 276 (Fla. 2d DCA 2010); Freudenberger v. State, 940 So.2d 551, 554-55 (Fla. 2d DCA 2006) (discussing the need for precision in the charging document in cases involving section 775.087); Whitehead v. State, 884 So.2d 139, 140 (Fl…
discussed Cited as authority (rule) Freudenberger v. State (2×) also: Cited "see"
Fla. Dist. Ct. App. · 2006 · confidence medium
These cases have arisen in the context of section 775.087(2)(a), the "10-20-Life Statute." In *555 one of these cases, we said that "[t]he grounds for enhancement of a sentence must be charged in the information" and that "neither the jury's finding that the firearm was discharged nor the inclusion of the statute number in the information cures the defect in the information." Whitehead v. State, 884 So.2d 139, 140 (Fla. 2d DCA 2004) (concluding that "[a] firearm may be used without being discharged; therefore, an allegation of `use' will not sustain an enhancement for discharging a firearm und…
cited Cited as authority (rule) Adams v. State
Fla. Dist. Ct. App. · 2005 · confidence medium
Whitehead v. State, 884 So.2d 139, 140 (Fla. 2d DCA 2004).
cited Cited "see" Adams v. State
Fla. Dist. Ct. App. · 2004 · signal: see · confidence high
See Whitehead v. State, 884 So.2d 139 (Fla. 2d DCA 2004).
discussed Cited "see, e.g." Driggers v. State
Fla. Dist. Ct. App. · 2005 · signal: see also · confidence low
The jury's finding that he discharged a firearm during the course of the aggravated assault did not cure the defect in the information."); see also Whitehead v. State, 884 So.2d 139 (Fla. 2d DCA 2004); Bell v. State, 876 So.2d 712 (Fla. 4th DCA 2004).
Retrieving the full opinion text from the archive…
Timothy WHITEHEAD, Appellant,
v.
STATE of Florida, Appellee.
2D04-865.
District Court of Appeal of Florida, Second District.
Jul 16, 2004.
884 So. 2d 139
Stringer.
Cited by 14 opinions  |  Published

STRINGER, Judge.

Timothy Whitehead appeals the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm the trial court's denial of three claims, but we reverse and remand for the trial court to correct an illegal sentence pursuant to a claim that Whitehead inartfully attempted to raise in his motion and that is apparent from the face of the record but that the trial court failed to address.

On March 6, 2002, a jury convicted Whitehead of aggravated battery with a deadly weapon, and the jury specifically found that Whitehead used and discharged a firearm. The trial court imposed a minimum mandatory sentence of twenty years[*140] in prison pursuant to section 775.087(2)(a)(2), Florida Statutes (1999).

The amended information attached to his rule 3.800(a) motion indicates that the information did not charge that Whitehead discharged a firearm. The information only charged the use of a firearm, but the court enhanced Whitehead's sentence for discharging a firearm under section 775.087(2)(a)(2). The grounds for enhancement of a sentence must be charged in the information. See Rogers v. State, 875 So.2d 769 (Fla. 2d DCA 2004); Altieri v. State, 835 So.2d 1181 (Fla. 4th DCA 2002). A firearm may be used without being discharged; therefore, an allegation of "use" will not sustain an enhancement for discharging a firearm under 775.087(2)(a)(2). See Rogers, 875 So.2d 769. Furthermore, neither the jury's finding that the firearm was discharged nor the inclusion of the statute number in the information cures the defect in the information. See id.

Because the information did not charge the grounds for enhancement, Whitehead's minimum mandatory sentence is illegal and may be corrected at any time under rule 3.800(a). See Leath v. State, 805 So.2d 956 (Fla. 2d DCA 2001). Accordingly, we reverse and remand for the trial court to resentence Whitehead under the Criminal Punishment Code. The trial court shall strike the twenty-year minimum mandatory sentence, but it shall impose the ten-year minimum mandatory sentence for use of a firearm pursuant to section 775.087(2)(a)(1).

Affirmed in part, reversed in part, and remanded.

COVINGTON and CANADY, JJ., concur.