         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                               NOT FINAL UNTIL TIME EXPIRES TO
                                               FILE MOTION FOR REHEARING AND
                                               DISPOSITION THEREOF IF FILED


STATE OF FLORIDA,

             Appellant,

 v.                                                   Case No. 5D16-429

ROBERT FRED WOODALL, III,

           Appellee.
________________________________/

Opinion filed March 3, 2017

Appeal from the Circuit Court
for Orange County,
Alan S. Apte, Judge.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Robin A. Compton,
Assistant Attorney General, Daytona
Beach, for Appellant.

William R. Ponall, of Ponall Law,
Maitland, and Thomas Sommerville, of
Law Offices of Thomas Sommerville,
Orlando, for Appellee.


PER CURIAM.

      The State of Florida timely appeals Robert Woodall’s resentencing for aggravated

battery with a firearm pursuant to Florida Rule of Criminal Procedure 3.800(a), arguing

that the lower court failed to reimpose Woodall’s twenty-year mandatory minimum
sentence after it erroneously concluded that the jury did not make a clear finding that

Woodall discharged a firearm during the offense. We agree.1

       Section 775.087(2)(a)2., Florida Statutes (2004), requires a twenty-year

mandatory minimum sentence to be imposed if a person is convicted of a listed offense,

including aggravated battery, and discharging a firearm during the commission of that

offense. “[M]andatory minimum sentencing enhancements are nondiscretionary and,

therefore, trial courts lack the authority to refuse to apply them.” State v. Kremer, 114 So.

3d 420, 421 (Fla. 5th DCA 2013) (citing State v. Moore, 854 So. 2d 832, 833-34 (Fla. 5th

DCA 2003)). The mandatory minimum sentence must be supported by a “clear jury

finding” that Woodall discharged a firearm during the offense, which “can be

demonstrated either by (1) a specific question or special verdict form (which is the better

practice), or (2) the inclusion of a reference to a firearm in identifying the specific crime

for which the defendant is found guilty.” State v. Iseley, 944 So. 2d 227, 230 (Fla. 2006)

(citing Tucker v. State, 726 So. 2d 768, 771-72 (Fla. 1999); State v. Overfelt, 457 So. 2d

1385, 1387 (Fla. 1984)).

       The General Verdict and the Special Verdict, independently and together,

constituted clear jury findings that Woodall discharged a firearm. In the General Verdict,

the jury found Woodall “guilty of Aggravated Battery with a Firearm, as charged in the

Information.” The information specifically alleged that Woodall committed aggravated

battery with a firearm, discharged the firearm during the offense, and was subject to the



       1The State candidly acknowledges its mistaken concession of error below, which
resulted in the trial court granting Woodall’s Rule 3.800(a) motion. While we are inclined
to agree that the State should not have conceded the illegality of Woodall’s sentence, we
recognize having done so, the State is now precluded from complaining about it on
appeal.

                                             2
twenty-year mandatory minimum sentence. In the Special Verdict, the jury found that

Woodall “did during the course of the crime, discharge a firearm and as a result of the

discharge, death or great bodily harm was inflicted upon the victim[.]”

                                      The General Verdict

       Despite the General Verdict’s clear reference to the information, including the

specific allegation of discharging a firearm, Woodall convinced the lower court that the

General Verdict did not constitute a clear jury finding because the jury was erroneously

instructed on alternative theories of aggravated battery, creating the possibility that it

found him guilty without discharging a firearm. Despite being instructed on alternative

theories, however, the jury found Woodall guilty of aggravated battery “with a firearm as

charged in the Information,” which alleged aggravated battery by one theory—use and

discharge of a firearm. Moreover, the alternative theories were causally linked in this

case because Woodall shot the victim in the ankle, making impossible his contention that

the jury could have found aggravated battery by causing great bodily harm without

discharging a firearm.

                                   The Special Verdict

       Consistent with the evidence, the jury found in the Special Verdict that Woodall

discharged a firearm causing the victim great bodily harm. Thus, the Special Verdict not

only contains a clear jury finding of discharge, it further refutes Woodall’s claim that the

jury could have found him guilty of aggravated battery without discharging a firearm.

Notwithstanding this clear finding, Woodall argues that it is insufficient because there is

no indication that it was made “beyond a reasonable doubt,” as required by Alleyne v.

United States, 133 S. Ct. 2151 (2013). Alleyne held that facts used to increase the




                                             3
mandatory minimum sentence are elements of the crime that must be submitted to the

jury and found beyond a reasonable doubt. Id. at 2158. Woodall argues that the trial

court failed to instruct the jury that its findings in the Special Verdict must be beyond a

reasonable doubt as reflected in Florida Standard Jury Instruction (Criminal) 3.3(d).2

Without this instruction or an express indication that the special finding was made beyond

a reasonable doubt, Woodall claims that there is no way to determine if the jury found

that he discharged a firearm beyond a reasonable doubt.

       Woodall’s reliance on the standard instruction is misplaced because that

instruction did not exist at his 2006 trial. Cf. Johnson v. State, 903 So. 2d 888, 899 (Fla.

2005) (rejecting claim that trial counsel was ineffective in failing to challenge standard

instruction as unconstitutional before being declared so by supreme court). Despite the

nonexistence of this instruction, we conclude that the instructions given at trial adequately

required the jury to make its findings, including the discharge finding, beyond a

reasonable doubt. Specifically, the jury was instructed that the presumption of innocence

“stays with the defendant as to each material allegation in the Information through each

stage of the trial unless it has been overcome by the evidence to the exclusion of and




       2
       In 2008, the Florida Supreme Court added the following instruction to Florida
Standard Jury Instruction (Criminal) 3.3(d):

              If you find that (defendant) committed (felony identified in §
              775.087(2)(a) 2, Fla. Stat.) and you also find beyond a
              reasonable doubt that during the commission of the crime,
              [he] [she] discharged a [firearm] [destructive device], you
              should find the defendant guilty of (felony) with discharge of a
              [firearm] [destructive device].

In re Standard Jury Instructions in Criminal Cases--Report No. 2007-08, 995 So. 2d 489,
491 (Fla. 2008) (emphasis added).

                                             4
beyond a reasonable doubt.” Woodall’s discharge of a firearm was a material allegation

in the information to which the jury was instructed that the beyond a reasonable doubt

standard applied.

      In addition, Florida law does not require an express indication that special findings

are made beyond a reasonable doubt when such indication may be inferred from the

record. In Amos v. State, 833 So. 2d 841, 842 (Fla. 4th DCA 2002), the Fourth District

held that the standard in Apprendi v. New Jersey, 530 U.S. 466, 490 (2000), that facts

used to increase the statutory maximum sentence be “submitted to a jury, and proved

beyond a reasonable doubt,” was satisfied without an express indication that the jury

made its finding beyond a reasonable doubt. The court reasoned as follows:

                     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 “[a]ggravated Battery
             with a Firearm, a lesser included offense, as contained in the
             Information.” Because the information accused Amos of
             “shooting [the victim] 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)).

Amos, 833 So. 2d at 842-43.        The same logic applies in this case.            Because the

information specifically alleged that Woodall discharged a firearm and the jury found

Woodall guilty “as charged in the information,” the jury’s finding of discharge, beyond a

reasonable doubt, was inherent in the verdict. Alleyne extended the Apprendi standard




                                             5
to mandatory minimum sentences. It follows that if cases after Apprendi do not require

an express indication that the clear jury finding is “beyond a reasonable doubt,” cases

after Alleyne do not either. See Lee v. State, 130 So. 3d 707, 710-11 (Fla. 2d DCA 2013)

(applying “clear jury finding” standard post-Alleyne and concluding that Alleyne error is

subject to harmless error analysis like Apprendi), rev. granted, No. SC14-416 (Fla. Nov.

17, 2016).

      Woodall also claims the Special Verdict was “incorrect” because it allowed the jury

to find facts necessary to impose the twenty-five-year mandatory minimum—discharge

causing great bodily harm—rather than a simple finding of discharge required for the

twenty-year mandatory minimum. Under such circumstances, Woodall would have been

subject   to   a   twenty-five-year   mandatory   minimum    sentence    under   section

775.087(2)(a)3., Florida Statutes (2004), except that he was not charged with aggravated

battery by causing great bodily harm. When the greater mandatory minimum is imposed

without a proper allegation in the information, the remedy is to impose the twenty-year

mandatory minimum because there is still a clear finding of discharge. See McKenzie v.

State, 31 So. 3d 275, 277 (Fla. 2d DCA 2010) (remanding for imposition of twenty-year

mandatory minimum sentence where information did not support twenty-five year

mandatory minimum sentence).          The twenty-year mandatory minimum sentence is

appropriate because the charging document alleged that Woodall discharged a firearm

and the Special Verdict found that Woodall discharged a firearm. The surplus finding of

great bodily harm did not negate the discharge finding, especially in this case where the

great bodily harm resulted solely from the discharge.




                                            6
       Finally, Woodall argues that the Special Verdict was “incomplete” because it did

not give the jury the choice of finding that Woodall did not discharge a firearm. The choice

urged by Woodall was not only unnecessary, it was inappropriate because it would have

resulted in an inconsistent verdict if the jury had found Woodall guilty “as charged in the

Information,” but then found that he did not discharge a firearm. See, e.g., Starling v.

State, 152 So. 3d 868, 868 (Fla. 1st DCA 2014) (reversing conviction for robbery with a

weapon based on truly inconsistent verdict finding that appellant did not possess firearm

during commission of robbery); Gerald v. State, 132 So. 3d 891, 895 (Fla. 1st DCA 2014)

(reversing conviction for aggravated assault with firearm based on inconsistent finding

that appellant did not possess firearm). Below, Woodall used this supposed defect in the

Special Verdict to convince the trial court that he was deprived of the opportunity for a

jury pardon, but there was no defect.

       In summary, we agree with the State’s contention that the General Verdict and

Special Verdict were “clear jury findings” beyond a reasonable doubt, that Woodall

discharged a firearm during the aggravated battery, and that Woodall’s arguments do not

render such findings unclear.3 Accordingly, we vacate Woodall’s sentence and remand

for imposition of the mandatory minimum sentence, with credit for the time Woodall has

already served.

       VACATED AND REMANDED WITH DIRECTIONS.


SAWAYA and EDWARDS, JJ., and JACOBUS, B.W., Senior Judge, concur.




       3We reject, without discussion, the State’s alternative argument that Woodall’s
admission to discharging the firearm, after the lower court had already determined that
the mandatory minimum sentence did not apply, can be used as a basis to reimpose it.

                                             7
