Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D18-3080 _____________________________ SEGWAYNE GOLDSON, Petitioner, v. STATE OF FLORIDA, Respondent. _____________________________ Petition Alleging Ineffective Assistance of Appellate Counsel— Original Jurisdiction. March 24, 2020 OPINION ON MOTION FOR REHEARING, CERTIFICATION, AND/OR ISSUANCE OF A WRITTEN OPINION WOLF, J. We previously denied Goldson’s petition alleging ineffective assistance of appellate counsel. On rehearing, Petitioner continues to assert that his appellate counsel was ineffective for not challenging his sentence as a dangerous sexual felony offender (DSFO) pursuant to section 794.0115, Florida Statutes, because the information did not allege a violation of that statute. We write to explain our decision to deny the petition; therefore, we deny appellant’s motion for rehearing and certification but grant the motion for issuance of a written opinion. In 2016, Petitioner was charged with three counts of sexual battery with the use of physical force likely to cause serious injury, violations of section 794.011, Florida Statutes. After trial Petitioner was found guilty as charged (sexual battery with physical force) as to count 2 of the information and guilty of a lesser offense (sexual battery without physical force) as to count 3. As to count 2, the jury made a specific finding that Petitioner caused serious personal injury to the victim. For count 2, Petitioner was sentenced to a 50-year mandatory minimum term as a DSFO. For count 3, he was sentenced to 15 years. The sentences were to run consecutively. The State did not charge or allege section 794.0115, Florida Statutes, the DSFO statute, in the information. Nonetheless, the State argued at sentencing—and the trial court agreed—that, because the State orally advised Petitioner during a plea offer prior to jury selection that if he did not accept the plea he would be subject to a 50-year mandatory minimum as a DSFO, this was sufficient notice to impose the DSFO sentence. In the instant petition, Petitioner argues that the DSFO statute or the element of “actually caused serious personal injury to the victim” should have been included in the information. The sexual battery statute, section 794.011(3), Florida Statutes, provides: A person who commits sexual battery upon a person 12 years of age or older, without that person’s consent, and in the process thereof uses or threatens to use a deadly weapon or uses actual physical force likely to cause serious personal injury commits a life felony, punishable as provided in s. 775.082, s. 775.083, s. 775.084, or s. 794.0115. (emphasis added). The last clause of section 794.011(3) expressly indicates that the offense is punishable under the DSFO statute, section 794.0115. Section 794.0115(2), Florida Statutes, provides: Any person who is convicted of a violation of s. 787.025(2)(c); s. 794.011(2), (3), (4), (5), or (8); s. 800.04(4) or (5); s. 825.1025(2) or (3); s. 827.071(2), (3), or (4); or s. 2 847.0145; or of any similar offense under a former designation, which offense the person committed when he or she was 18 years of age or older, and the person: (a) Caused serious personal injury to the victim as a result of the commission of the offense; .... is a dangerous sexual felony offender, who must be sentenced to a mandatory minimum term of 25 years imprisonment up to, and including, life imprisonment. If the offense described in this subsection was committed on or after October 1, 2014, a person who qualifies as a dangerous sexual felony offender pursuant to this subsection must be sentenced to a mandatory minimum term of 50 years imprisonment up to, and including, life imprisonment. (Emphasis added). Generally, where a certain factual finding is necessary to implicate a sentence enhancement statute, the State must charge that fact in the information or cite the enhancement statute in order to provide notice to the defendant that he may face the enhancement. See, e.g., Arnett v. State, 128 So. 3d 87, 88 (Fla. 1st DCA 2013) (imposition of mandatory minimum under § 775.087(2)(a) was illegal because defendant was not charged with “actual possession” of a firearm); Davis v. State, 884 So. 2d 1058, 1060-61 (Fla. 2d DCA 2004) (imposition of mandatory term under section 775.087(2)(a) was illegal because information did not charge death or great bodily harm); Altieri v. State, 835 So. 2d 1181, 1183 (Fla. 4th DCA 2002) (imposition of mandatory minimum under section 775.087(2)(a) was illegal because information did not charge defendant with having discharged a firearm, but only charged him with having “used” a firearm). A special finding by the jury does not cure the defect in the charging document. Arnett v. State, 128 So. 3d at 88; Davis, 884 So. 2d at 1060-61. In Davis v. State, 277 So. 3d 1111 (Fla. 1st DCA 2019), this court reversed and remanded with instructions to “strike the mandatory minimum term of his life sentence for attempted first- degree premeditated murder because the allegations in the 3 charging document were not sufficient to place him on notice that he was subject to an enhanced sentence under section 775.087(2)(a)(3), Florida Statutes (providing for the imposition of a 25-year mandatory minimum when a defendant inflicts death or great bodily harm through the discharge of a firearm).” (Emphasis added). As authority, the Davis panel relied on Bienaime v. State, 213 So. 3d 927, 929 (Fla. 4th DCA 2017), wherein the Fourth DCA held the State must “allege grounds for enhancement in the charging document” to pursue an enhanced mandatory sentence under the 10-20-Life statute. Id. In this case, the element of the underlying offense—sexual battery in violation of section 794.011(3), Florida Statutes—that the defendant “used actual physical force likely to cause serious personal injury” was charged in the information. The 50-year mandatory minimum under the DSFO statute, section 794.0115(2), Florida Statutes, required a finding that the defendant actually “caused serious personal injury to the victim as a result of the commission of the offense.” These are different requirements such that the inclusion of the “actual physical force likely” element in the information did not also sufficiently put the defendant on notice of the “caused serious personal injury” requirement for DSFO. Cf. Altieri, 835 So. 2d at 1183 (information alleging that defendant “used” a firearm was insufficient to place defendant on notice that he could be subject to mandatory minimum if he was found to have “discharged” a firearm). This case differs from Altieri, Davis, and the others cited above in that there is no indication in those opinions that the defendants were clearly made aware through pretrial hearings that they faced the sentencing enhancement that was not charged in the information. In this case, it is clear that a plea discussion on the record prior to jury selection included a discussion that Petitioner faced a 50-year mandatory minimum as a DSFO. The jury also made the factual finding which met the statutory requirements. There is very little analysis in the case law whether the defendant must demonstrate prejudice. In Bradley v. State, 3 So. 3d 1168, 1171 (Fla. 2009), the Florida Supreme Court held that a defendant, in making a nolo contendere plea, could waive a defective information that failed to charge him with discharging a firearm—the fact on which imposition of a mandatory minimum 4 was based. The Florida Supreme Court noted that Bradley’s trial counsel clearly stated at the plea hearing that Bradley faced the mandatory minimum. Id. The Florida Supreme Court also noted that Bradley’s plea agreement and the factual stipulation “reflects that he understood the nature and consequences of his plea, negating any notion that he was misled or prejudiced.” Id. Altieri and the other similar cases cited above did not involve a prejudice analysis. While Bradley involved a plea and arguably actual acceptance of the defect, we see no reason not to apply a prejudice analysis in the context of the claim we have before us. The instant case has clear record support that Petitioner knew prior to trial that he faced a 50-year mandatory minimum sentence as a DSFO. We conclude that the instant case is sufficiently similar to the circumstances involving the plea that satisfied the Florida Supreme Court’s analysis in Bradley. Similarly to Bradley, Petitioner’s trial counsel (as well as the judge and prosecutor) acknowledged at the hearing that Petitioner was facing a 50-year mandatory minimum sentence as a DSFO. Petitioner’s counsel did indicate some inclination to challenge the information prior to the swearing in of the jury, but counsel acknowledged receiving the information and acknowledged the State’s plea offer and Petitioner’s sentencing exposure. Both the judge and the attorneys explained the sentencing exposure to Petitioner. Because Petitioner had actual notice, the petition alleging ineffective assistance of appellate counsel is denied on the merits. ROBERTS, J., concurs; ROWE, J., concurs in result. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ 5 Robert David Malove of the Law Office of Robert David Malove, P.A., Fort Lauderdale, for Petitioner. Ashley Moody, Attorney General, and Steven E. Woods, Assistant Attorney General, Tallahassee, for Respondent. 6