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Amos v. State

12/18/2002

Defendant Tyra Amos ("Amos") appeals her conviction for aggravated battery with a firearm and the denial of her Rule 3.800 motion to correct an illegal sentence. The State charged Amos by information with attempted first-degree murder "by shooting JOHN MILLION ["Million"] with a firearm." Amos admitted she shot Million, but claimed self-defense. She and Million had been romantically involved, and the record reveals a history of physical violence between them.


The jury returned a verdict of " uilty of Aggravated Battery with a Firearm, a lesser included offense, as contained in the Information." The jury answered yes to the sole special interrogatory `We find the defendant actually possessed a firearm?'


Amos's conviction yielded a sentencing range of 51.15 months at minimum and fifteen years at maximum. Relying on section 775.087(2)(a)3, Florida Statutes, however, the trial court enhanced Amos's sentence to the minimum twenty-five-year sentence for discharge of a firearm causing great bodily harm.


Amos claims her sentence is illegal because the jury did not make specific findings that 1) she discharged a weapon, and 2) such discharge caused great bodily harm, which findings are necessary to trigger an enhancement under section 775.087(2)(a)3. Although her argument regarding the discharge of a weapon lacks merit, we agree that her enhanced sentence violates her due process rights because the enhancing factor of great bodily harm was not found beyond a reasonable doubt by the jury. See Apprendi v. New Jersey, 530 U.S. 466 (2000). Under Apprendi, when a fact other than a prior conviction is used to enhance a defendant's sentence beyond the statutory maximum for the crime of which he is convicted, that fact must have been submitted to the jury and found beyond a reasonable doubt. Apprendi, 530 U.S. at 490.


As to the fact of discharging a firearm, the record in this case indicates that this fact was submitted to the jury, and the jury found beyond a reasonable doubt that Amos discharged a firearm. The jury convicted Amos of " ggravated Battery with a Firearm, a lesser included offense, as contained in the Information." Because the information accused Amos of "shooting JOHN MILLION with a firearm" and the verdict specifically refers to the information, and because Amos was convicted of aggravated battery with a firearm, the finding that Amos discharged a weapon is inherent in the jury's verdict. Cameron v. State, 804 So. 2d 338, 344 n.11 (Fla. 4th DCA 2001) (rejecting Apprendi challenge for lack of a specific finding of death or injury when such finding was inherent in the conviction for manslaughter) (citing Tucker v. State, 726 So. 2d 768 (Fla. 1999) (holding that jury verdict of `guilty of attempted first-degree murder with a firearm' supported enhanced sentence for use of a firearm)).


Even if the question of Amos's discharge of a firearm were not submitted to and found by the jury, Amos did not deny shooting Million, but claimed it was in self-defense. In a sworn statement to police she admitted shooting Million in the back, and in closing argument her attorney told the jury that whether Amos shot Million was not an issue in the case, because she "is not, nor has she ever denied that she shot John Million." Thus, Amos cannot now challenge whether the fact that she discharged a firearm was found beyond a reasonable doubt by the jury. See Hindenach v. State, 807 So. 2d 739, 743 (Fla. 4th DCA (2002) (defendant who pled nolo contendere to DUI charges admitted the fact of causing serious bodily injury, and Apprendi does not require a jury to find beyond a reasonable doubt, for the purpose of sentencing, such admitted facts).


The remaining questi

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