01-2660 LENOIR V. STATE

State: Florida

Court: Florida Third District Court

Docket No: 01-2660 LENOIR V. STATE

Case Date: 12/26/2001

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.

IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D. 2001 DALE LEE LENOIR, Appellant, vs. THE STATE OF FLORIDA, Appellee. ** ** ** ** ** LOWER TRIBUNAL CASE NO. F91-27323 CASE NO. 3D01-2660

Opinion filed December 26, 2001. An appeal from the Circuit Court of Dade County, Cecilia M. Altonaga, Judge. Dale Lee Lenoir, in proper person. Robert A. Butterworth, Attorney General; Katherine Fernandez Rundle, State Attorney, and Jessica Reid, Assistant State Attorney, for appellee.

Before JORGENSON, GODERICH, and FLETCHER, JJ.

FLETCHER, Judge. Dale Lee Lenoir appeals the summary denial of his rule 3.800 motion to correct an illegal sentence. At the start of trial, the We affirm. moved, over defense

State

objection, to amend the information to include citation to Fla.

Stat. 775.087 (reclassification of offense for possession or use of a weapon). The information originally cited 777.04 (attempt) and 782.04 (murder), as well as 790.07 for count two (unlawful possession of firearm while engaged in felony). The court granted the state's motion to amend. Lenoir was convicted and was

sentenced to 22 years with the mandatory 3-year minimum for use of the firearm. The court vacated the judgment of guilt on the charge of possession of firearm while engaged in a felony. Lenoir first argues that the last-minute amendment of the information to include section 775.087, Florida Statutes raised his offense level from a second degree to a first degree felony, which prejudiced his defense. It is true that "the state may

substantively amend an information during trial, even over the objection of the defendant, unless there is a showing of prejudice to the substantial rights of the defendant." State v. Anderson, 537 So. 2d 1373, 1375 (Fla. 1989) (relying on Lackos v. State, 339 So. 2d 217 (Fla. 1976)). However, the amendment did not prejudice Lenoir as to any claimed defense because the language of the original information stated that Lenoir attempted to kill the victim by " shooting him with a firearm. . . ." [e.s.] The error in the omission of the citation is not a ground for dismissing the count or for a reversal of a conviction based thereon if the omission did not mislead Lenoir to his prejudice. Fla. R. Crim. P. 3.140(d) (2001). Additionally, the language in the original information states 2

that Lenoir "attempted to kill [the victim] . . . by shooting him with a firearm in violation of

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