DELGADO v. The State of Fla.

• Decision Date: 25 August 2010
• Docket Number: No. 3D08-611.,3D08-611.
• Citation: 43 So.3d 132
• Parties: Juan DELGADO, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

43 So.3d 132

Juan DELGADO, Appellant, v. The STATE of Florida, Appellee.

No. 3D08-611.

District Court of Appeal of Florida, Third District.

August 25, 2010.

COPYRIGHT MATERIAL OMITTED.

Carlos J. Martinez, Public Defender, and Shannon P. McKenna, Assistant Public Defender, for appellant.

Bill McCollum, Attorney General, and Lunar Claire Alvey, Assistant Attorney General, for appellee.

Before SUAREZ, CORTIÑAS, and SALTER, JJ.

SUAREZ, J.

The defendant, Juan Delgado, appeals a statutory ten-year minimum mandatory sentence for two counts of armed robbery with a firearm. We affirm the conviction and sentence on each count of armed robbery including the ten-year minimum mandatory for actually possessing a firearm in violation of section 775.087(2), Florida Statutes (2005).

The defendant contends on appeal that, because the charging information does not necessarily include Delgado as possessing a firearm in the commission of the robbery, the information is not specific enough to support the application of the ten-year minimum mandatory enhancement. We disagree.

An information is fundamentally defective only where it totally omits an essential element of the crime or is so vague, indistinct or indefinite that the defendant is misled or exposed to double jeopardy. Fla. R.Crim. P. 3.140; State v. Dilworth, 397 So.2d 292 (Fla.1981); Bradley v. State, 971 So.2d 957 (Fla. 5th DCA 2007), approved, 3 So.3d 1168 (Fla.2009). "The test for granting relief based upon a defect in the charging document is actual prejudice." State v. Gray, 435 So.2d 816, 818 (Fla.1983).

Juan Delgado and a codefendant were charged in one information with committing two counts of armed robbery with a firearm or destructive device in violation of sections 812.13(2)(A), 775.087 and 777.011, Florida Statutes (2005), as follows:

COUNT 1

ROLANDO PEREZ and JUAN ELIECER DELGADO, on or about June 30, 2007, in the County and State aforesaid, did unlawfully, by force, violence, assault or putting in fear, take certain property, to wit: PURSE and/or JEWELRY and/or CREDIT CARDS and/or CELLULAR TELEPHONE, said property being the subject of larceny, and of the value of more than three hundred dollars ($300.00), the property of MARIA ZALDIVAR, as owner or custodian, from the person or custody of MARIA ZALDIVAR, with the intent to temporarily or permanently deprive the above-named owner(s) or custodian(s) of the said property, and during the commission of the offense, said defendant possessed a firearm or destructive device in violation of s. 812.13(2)(A) and 775.087 and s. 777.011, Fla. Stat., contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida.

COUNT 2

And the aforesaid Assistant State Attorney, under oath, further information makes ROLANDO PEREZ and JUAN ELIECER DELGADO, on or about June 30, 2007, in the County and State aforesaid, did unlawfully, by force, violence, assault or putting in fear, take certain property, to wit: JEWELRY, said property being the subject of larceny, and of the value of less than three hundred dollars ($300.00), the property of JOSE ZALDIVAR, as owner or custodian, from the person or custody of JOSE ZALDIVAR, with the intent to temporarily or permanently deprive the above-named owner(s) or custodian(s) of the said property, and during the commission of the offense, said defendant possessed a firearm or destructive device in violation of s. 812.13(2)(A) and 775.087 and s. 777.011, Fla. Stat., contrary to the form of the Statute in such cases made and provided, and against the peace and dignity of the State of Florida.

Section 775.087(2), Florida Statutes (2005) states that a person convicted of a felony, who, during the commission of the felony, "actually possess[es] a firearm or destructive device ... shall be sentenced to a minimum term of imprisonment of 10 years." To enhance a defendant's sentence by means of a statute containing a minimum mandatory, the information must clearly charge the grounds for enhancement. See State v. Rodriguez, 602 So.2d 1270 (Fla.1992). Here, the caption of the information designates Rolando Perez as the "A" defendant and Juan Delgado as the "B" defendant. Defendants "A" and "B" are listed under Counts 1 and 2, showing that Counts 1 and 2 charge both defendants with the possession of a firearm in the commission of the robbery. The robbery with a firearm charges therefore apply to both defendants.

The text of the information refers to both defendants by name, and charges that "said defendant possessed a firearm or destructive device in violation of s. 812.13(2)(A) and 775.087 and s. 777.011, Fla. Stat." The phrase, "said defendant," likewise applies to both defendants since, under Florida law, the singular form of a phrase includes the plural form. In this case, the phrase, "said defendant," includes the phrase, "said defendants." § 1.01, Fla. Stat. (2009) ("In construing the statutes in each and every word, phrase or paragraph, where the context will permit: (1) the singular includes the plural and vice versa."). Therefore, the minimum mandatory provisions of section 775.087(2) apply to both defendants. The information sufficiently alleges the essential elements of armed robbery, adequately advises the defendant of the charges against him, see Price v. State, 995 So.2d 401 (Fla.2008), and is sufficiently clear to charge the grounds for enhancement. See § 775.087(2), Fla. Stat. (2005); Rodriguez, 602 So.2d at 1270.

A jury found Juan Delgado guilty of two counts of armed robbery. The trial judge sentenced Delgado to twenty years in prison with a ten-year minimum mandatory for the actual possession of a firearm followed by twenty-years probation.¹ The jury heard testimony...