Full Opinion

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT JONATHAN CABRERA, Appellant, v. STATE OF FLORIDA, Appellee. No. 2D22-1378 December 7, 2022 Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Manatee County; Stephen Whyte, Judge. Jonathan Cabrera, pro se. KELLY, Judge. Jonathan Cabrera appeals from the postconviction court's order denying his motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). Because Cabrera's claim is not cognizable in a rule 3.800(a) motion, we affirm. The State charged Cabrera with second-degree murder with a firearm and aggravated battery with great bodily harm with a firearm. A jury convicted him as charged, specifically finding that during the commission of each offense, he discharged a firearm resulting in death or great bodily harm to the victim. The trial court sentenced Cabrera to life imprisonment on the second-degree murder charge, and it imposed a concurrent term of thirty years' imprisonment with a twenty-five-year mandatory minimum term on the aggravated battery charge. The mandatory minimum term was based on the finding that during the commission of the offense, Cabrera discharged a firearm resulting in great bodily harm or death. In his rule 3.800(a) motion, Cabrera argues his mandatory minimum sentence is illegal because the information charging him with aggravated battery stated only that he discharged a firearm during the commission of the aggravated battery but did not state that discharging the firearm resulted in great bodily harm or death. He contends that notwithstanding the jury's finding, the trial court was only authorized to impose a twenty-year mandatory minimum term rather than the twenty-five-year term he received. Compare § 2 775.087(2)(a)2, Fla. Stat. (2008) (requiring a twenty-year mandatory minimum term for discharging a firearm or destructive device during the commission of certain enumerated felonies, which include aggravated battery), with § 775.087(2)(a)3 (requiring a mandatory minimum term of twenty-five years to life imprisonment for discharging a firearm or destructive device if that discharge results in death or great bodily harm to a person). In Martinez v. State, 211 So. 3d 989 (Fla. 2017), the Florida Supreme Court held that this type of error in a charging document does not result in the type of illegal sentence contemplated by rule 3.800(a). In Martinez, the defendant filed a motion to correct illegal sentence fourteen years after his conviction, alleging that his ten- year mandatory minimum sentence was illegal because, even though the jury specifically found that he actually possessed a firearm, the information alleged only that he carried a firearm and therefore it was not sufficient to put him on notice that he was subject to an enhanced sentence based on actual possession of a firearm. Id. at 991. The supreme court rejected Martinez's claim that this rendered his sentence illegal, stating that "Martinez challenged the 3 procedure that led to the imposition of his mandatory minimum sentence by arguing that he was deprived of his due process right to notice of the potential punishment he faced," but that an "alleged defect in the charging document . . . does not constitute an illegal sentence subject to correction under Florida Rule of Criminal Procedure 3.800(a)." Id. at 990, 992. The supreme court explained that while a defendant may be able to challenge a technical sentencing error on direct appeal, he could not do so in a rule 3.800(a) motion because to be cognizable under the rule, the error must involve "a court's patent lack of authority or jurisdiction, a violation of the sentencing maximums provided by the Legislature, or a violation of some other fundamental right resulting in a person's wrongful imprisonment." Id. at 992 (quoting Wright v. State, 911 So. 2d 81, 84 (Fla. 2005)). Accordingly, the supreme court concluded that "[s]uch a challenge . . . is not cognizable in a rule 3.800(a) motion." Id. at 992; see also Robinson v. State, 215 So. 3d 1262, 1270 (Fla. 1st DCA 2017) (recognizing that the Martinez holding "declares technical-defects in state-issued charging documents are no longer considered 'structural' 4 constituting per se reversible error and do not qualify as an 'illegal sentence' subject to a rule 3.800(a) challenge"). Cabrera's claim that the charging document did not allege the facts necessary to support his enhanced sentence is precisely the type of technical deficiency in the sentencing procedure that the supreme court held is not cognizable in a rule 3.800(a) motion.1 Accordingly, we affirm the order on appeal. Affirmed. LaROSE and SMITH, JJ., Concur. Opinion subject to revision prior to official publication. 1 But see Espinoza v. State, 264 So. 3d 343, 345 (Fla. 5th DCA 2019); Denegal v. State, 263 So. 3d 842, 844 (Fla. 5th DCA 2019). 5