Isaac J. Nelson, III v. State of Florida

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
ISAAC J. NELSON, III,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D15-2490
[ May 11, 2016 ]
CORRECTED OPINION
Appeal of order denying rule 3.800(a) motion from the Circuit Court for
the Fifteenth Judicial Circuit, Palm Beach County; Joseph G. Marx, Judge;
L.T. Case No. 502000CF003250A.
Isaac J. Nelson, III, Perry, pro se.
Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney,
Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
Isaac J. Nelson, III, appeals an order summarily denying his Rule
3.800(a) motion. He challenged the twenty-five year mandatory minimum
terms imposed on his convictions for second degree murder with a firearm
and attempted first degree murder with a firearm under the 10-20-Life law.
§ 775.087(2)(a)3, Fla. Stat. (1999) (requiring imposition of twenty-five year
mandatory minimum for discharge of firearm, resulting in death or great
bodily harm, during the course of committing an enumerated offense). His
claim was that the indictment did not charge “death or great bodily harm,”
and therefore the mandatory terms were illegal. We affirm as to both
counts.
Nelson was charged with first degree murder with a firearm as to one
victim (Count I), and attempted first degree murder with a firearm as to a
second victim (Count II). A jury found him guilty of the lesser included
offense of second degree murder with a firearm as to Count I and guilty as
charged as to Count II. In the verdict for Count I, the jury found that
Nelson discharged a firearm and “as a result caused death or great bodily
harm” to the victim. In Count II, the jury also found that he discharged a
firearm and, as a result, “great bodily harm” was inflicted on the victim.
He was sentenced to concurrent terms of 26.6 years, each with a twenty-
five year mandatory minimum pursuant to section 775.087(2).
In his Rule 3.800(a) motion, Nelson alleged that the enhancement of his
sentences with the twenty-five year mandatory minimum terms was illegal
because death or great bodily harm was not charged in the indictment, a
copy of which he attached. He cited authority for the proposition that
neither the inclusion of the statute number in the charging document, nor
the jury finding, could cure this fatal defect. 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).
At the outset, we note that the alleged error in this case should be
deemed waived by the lack of a contemporaneous objection when the
special interrogatory was submitted to the jury and when the sentence was
imposed in December 2000. This alleged charging defect does not result
in an illegal sentence subject to correction at any time under rule 3.800(a).
See Martinez v. State, 169 So. 3d 170, 172 (Fla. 4th DCA 2015), rev.
granted, No. SC15-1620, 2016 WL 1082749 (Fla. Mar. 11, 2016). As we
explained in Martinez, the Florida Supreme Court in Bradley v. State, 3
So. 3d 1168, 1171 (Fla. 2009), “recognized that a defendant can waive the
failure to precisely charge grounds for a mandatory minimum under the
10-20-Life law.” Martinez, 169 So. 3dat 172.
On the merits, however, we affirm the denial as to Count I, because, as
the record shows, Count I of the indictment charged that Nelson “did . . .
kill” the victim “by shooting him” and had a handgun in his possession.
We also affirm as to Count II of the indictment, which charged that
Nelson “did unlawfully attempt to commit first degree murder with a
firearm . . . by shooting [the victim], but [Defendant] failed in the
perpetration or was intercepted or prevented in the execution of said
offense, contrary to Florida Statutes 777.04(1), 775.087(2) and
782.04(1)(a).” We agree with the state’s position that the allegation that
Nelson shot the victim was sufficient to give notice of the “great bodily
harm” element. 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
2
advise defendant of the “great bodily harm” element, as language was more
specific than “simply alleging great bodily harm”).
Affirmed.
TAYLOR, GERBER and FORST, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
3