HOPE v. STATE (2013)

Appellant was convicted of attempted first-degree murder (count 1), aggravated battery with a deadly weapon (count 2), and three counts of aggravated assault with a deadly weapon (counts 3, 4, and 5). The convictions were affirmed on direct appeal, but the case was remanded for resentencing because the aggravated battery charge had been dismissed. See Hope v. State, 68 So.3d 366 (Fla. 1st DCA 2011).

On remand, Appellant was sentenced to life in prison with a mandatory minimum of 25 years on count 1, and 20 years concurrent with 20–year mandatory minimums on counts 3, 4, and 5.¹ The mandatory minimums were imposed under the 10/20/life statute based on the jury's findings that Appellant discharged a firearm causing great bodily harm during the commission of count 1 and that he discharged a firearm during the commission of counts 3, 4, and 5.

In this direct appeal from resentencing, Appellant argues² 1) that the mandatory minimum for count 1 is illegal because the information for that count alleged only discharge of a firearm (for which the mandatory minimum is 20 years³ ), not discharge causing great bodily harm; and 2) that the mandatory minimums for counts 3, 4, and 5 are illegal because the information for those counts alleged only possession of a firearm (for which the mandatory minimum is 3 years⁴ ), not discharge. We cannot consider these claims on the merits because they were not preserved for appellate review by a contemporaneous objection or a rule 3.800(b)(2) motion.⁵ See Jackson v. State, 983 So.2d 562, 568 (Fla.2008) (quoting Brooks v. State, 969 So.2d 238, 241–42 (Fla.2007)). We decline Appellant's invitation to make an exception to the preservation requirement simply because his claims appear to have merit based on Young v. State, 86 So.3d 541 (Fla. 2d DCA 2012), and cases cited therein. See also Driggers v. State, 917 So.2d 329, 333 (Fla. 5th DCA 2005); Altieri v. State, 835 So.2d 1181, 1183 (Fla. 4th DCA 2002).

Accordingly, we affirm Appellant's sentences. We do so, however, without prejudice to Appellant raising the above claims in a motion for postconviction relief under rule 3.800(a) or rule 3.850, see Jackson, 983 So.2d at 568, or a petition alleging ineffectiveness of appellate counsel. See Evans v. State, 904 So.2d 638 (Fla. 1st DCA 2005).

AFFIRMED.⁶

PER CURIAM.

ROBERTS, WETHERELL, and SWANSON, JJ., concur.