Johnson v. State, 5D13–3867.

• Decision Date: 24 October 2014
• Docket Number: No. 5D13–3867.,5D13–3867.
• Parties: Montrell L. JOHNSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

149 So.3d 727

Montrell L. JOHNSON, Appellant
v.
STATE of Florida, Appellee.

No. 5D13–3867.

District Court of Appeal of Florida, Fifth District.

Oct. 24, 2014.

149 So.3d 728

Michael H. Lambert, of Lambert Law, Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.

Opinion

ORFINGER, J.

Montrell L. Johnson appeals the denial of his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850, alleging ineffective assistance of counsel. We affirm, but write to address Johnson's claim that his trial counsel was ineffective for failing to object to the improper reclassification of his charged crime.¹ While we agree that Johnson's conviction for aggravated battery should not have been reclassified to a first-degree felony, we conclude that his twenty-year sentence is otherwise legal.

At trial, the State presented eyewitness testimony that Johnson shot the victim after the two engaged in an altercation outside a nightclub. In addition to finding Johnson guilty of aggravated battery with a firearm, the jury made special findings that Johnson (1) possessed a firearm; (2) discharged a firearm; and (3) discharged a firearm and, as a result, caused great bodily harm and/or permanent disability and/or permanent disfigurement to the victim. On direct appeal, this Court held that because the jury found that Johnson's discharge of the firearm had “caused great bodily harm and/or permanent disability and/or permanent disfigurement,” the twenty-five-year minimum enhancement set forth in section 775.087(2)(a) 3., Florida Statutes (2007), commonly known as the “10–20–Life” statute, was not applicable. That provision of the statute does not apply when the result is “permanent disability” or “permanent disfigurement.” It applies only to “great bodily harm.” See Johnson v. State, 53 So.3d 360 (Fla. 5th DCA 2011). On remand, Johnson was resentenced to twenty years in prison pursuant to section 775.087(2)(a) 2. He contends that his sentence is illegal.

Trial counsel's failure to object to an illegal sentence constitutes ineffective assistance of counsel. Hernandez v. State, 30 So.3d 610, 612–13 (Fla. 3d DCA 2010) (citing Rudolph v. State, 968 So.2d 633 (Fla. 2d DCA 2007) ; Penn v. State, 941 So.2d 466 (Fla. 1st DCA 2006) ). “Aggravated battery with a firearm is not subject to reclassification...