5D09-2789 Montrell Johnson v. State

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D09-2789

Case Date: 01/17/2011

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2011

MONTRELL L. JOHNSON, Appellant, v. STATE OF FLORIDA, Appellee. ________________________________/ Opinion filed January 21, 2011 Appeal from the Circuit Court for Volusia County, Joseph G. Will, Judge. Aaron D. Delgado, of Damore, Delgado, Romanik & Rawlins, Daytona Beach, for Appellant. Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee. EVANDER, J. Johnson appeals from his conviction for aggravated battery with a firearm. We affirm his conviction without discussion. However, we find that the trial court erred in imposing a mandatory minimum sentence of twenty-five years pursuant to section 775.087(2)(a)3., Florida Statutes (2007), where the jury failed to make a specific finding that the victim suffered "great bodily harm" as the result of Johnson's discharge of a firearm. Case No. 5D09-2789

At trial, the State presented eyewitness testimony that Johnson shot the victim in the leg after the two had engaged in an altercation outside a nightclub. In addition to finding Johnson guilty of aggravated battery with a firearm, the jury made special findings that: 1) Johnson possessed a firearm; 2) Johnson discharged a firearm; and 3) Johnson discharged a firearm and, as a result, caused great bodily harm and/or permanent disability and/or permanent disfigurement to the victim. At the original sentencing hearing, the trial court pronounced a twenty-five year incarcerative sentence, stating: Okay. Mr. Johnson, the minimum sentence that the court can impose in your case is 25 years incarceration. And I don't wish to sentence you to anything greater than that. *** Accordingly, Mr. Johnson, you'll be adjudicated guilty, sentenced to 25 years incarceration with the Department of Corrections . . . . The trial court's subsequent written order reflected the twenty-five year sentence, but further provided that Johnson would serve a twenty year mandatory minimum term and that he would not be eligible for statutory gain time. Johnson then filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). In his motion, Johnson challenged the imposition of the mandatory minimum term. The trial court denied the motion, found that as a result of a clerical error the written judgment incorrectly referenced a twenty year mandatory minimum term, and entered an amended judgment reflecting that Johnson would be required to serve twenty-five years in prison without eligibility for statutory gain time.

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On appeal, Johnson challenges the mandatory minimum part of his sentence on three different grounds. First, he contends that because the trial court failed to orally pronounce the mandatory minimum term at the original sentencing hearing, it was precluded by double jeopardy principles from subsequently doing so. Second, Johnson argues that the mandatory minimum term is illegal because the state failed to allege, and the jury failed to make a finding, that Johnson actually possessed or actually discharged a firearm. Third, Johnson claims that the jury's finding that the discharge of the firearm had "caused great bodily harm and/or permanent disability and/or permanent disfigurement" did not permit an enhancement of the mandatory minimum term from twenty years to twenty-five years because the enhancement statute makes no reference to "permanent disability" or "permanent disfigurement." Johnson's first two arguments, but find merit to his third claim. Pursuant to section 775.087(2)(a)1.g., Florida Statutes (2007), any person who is convicted of an aggravated battery and "during the commission of the offense, such person actually possessed a 'firearm' . . . shall be sentenced to a minimum term of imprisonment of 10 years . . . ." The minimum sentence is increased to twenty years if, during the course of the commission of the crime, the offender discharged the firearm, section 775.087(2)(a)2., and to twenty-five years if, as the result of the discharge of the firearm, "death or great bodily harm was inflicted upon any person."

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