III v. The State of Florida, Appellee. (2025)

James Cherry, III, appeals from the denial of his motion to vacate, set aside, or correct sentence, wherein he contended that his life sentence with a twenty-five year minimum mandatory provision for second degree murder was illegally enhanced pursuant to section 775.087(2), Florida Statutes (2007), without a jury finding as required by Erlinger v. United States, 602 U.S. 821 (2024). The trial court denied the motion as time barred, having been filed after the two-year window provided in Florida Rule of Criminal Procedure 3.850(b). However, a post-conviction claim can be brought outside the two-year limitation if “[t]he sentence imposed was illegal because it either exceeded the maximum or fell below the minimum authorized by statute for the criminal offense at issue.” § 924.051(6)(c), Fla. Stat. (2024). Nonetheless, we affirm the order on review as the record conclusively refutes Cherry's claim, because the jury verdict includes its finding that Cherry “discharged a firearm causing great bodily harm or death.” Moreover, the United States Supreme Court's decision in Erlinger does not apply retroactively to a sentence that was already final at the time Erlinger issued. See Wainwright v. State, 411 So. 3d 392, 399–401 (Fla. 2025); see also Arias v. State, 50 Fla. L. Weekly D1341 (Fla. 3d DCA June 18, 2025).

Affirmed.

PER CURIAM.