Ricky Bradley v. State of Florida

SC08-196

THE NEXT CASE ON THE COURT'S
DOCKET IS BRADLEY v. STATE.
>> MR.^BECKER?
>> YES.
>> MAY IT PLEASE THE COURT.
MY NAME IS MICHAEL BECKER AND I
AM AN ASSISTANT PUBLIC DEFENDER
IN DAYTONA BEACH AND I
REPRESENT THE PETITIONER RICKY
BRADLEY.
VERY BRIEFLY THE FACTS OF THIS
CASE INVOLVE THE DEFENDANT
BEING CHARGED WITH ATTEMPTED
FELONY MURDER AND ROBBERY WITH
A FIREARM.
>> WHICH ARE BOTH CRIMES THAT
WOULD'VE CARRIED A, WOULD'VE
CARRIED A LIFE SENTENCE.
>> YES.
>> SO HE PLED OUT TO SOMETHING
THAT GAVE HIM 20 YEARS.
AND HE ADMITTED AT THE PLEA
HEARING THAT HE CARRIED THE,
THE, THAT HE DISCHARGED THE
WEAPON AND HIS LAWYER DIDN’T
AND HE KNEW HE WAS GETTING 20
YEARS INSTEAD OF A LIFE
SENTENCE, CORRECT?
>> YES.
>> AND YOU ARE NOT TRYING TO
WITHDRAW THE PLEA TO REDO THE
TRIAL.
YOU ARE CLAIMING UNDER THIS IF
IN LEGAL SENTENCE THAT TEN
YEARS LATER COULD HAVE BEEN,
THAT HE BE ENTITLED TO GET OUT
IN TEN YEARS.
IS THAT ESSENTIALLY WHAT
YOU'RE, THE PRACTICAL EFFECT OF
YOUR ARGUMENT.
>> YES, HE WON'T BE GETTING OUT
IN TEN YEARS BUT IT'S A
TEN-YEAR MANDATORY MINIMUM IS
WHAT WE ARE SAYING.
>> TEN-YEAR MANDATORY MINIMUM
SO IF SOMEBODY HAD BROUGHT THIS
TO THE ATTENTION OF THE, THE
STATE AT THE TIME, BECAUSE
COULD THE STATE HAVE AMENDED
ITS INFORMATION TO HAVE
CONFORMED WITH THE WHAT WAS
THEN BEING ALLEGED?
>> YES.
>> CAN THEY DO THAT NOW?
>> I DON'T THINK SO.
>> WELL ISN'T THERE SOMETHING,
YOU KNOW, AGAIN LAST -- LAST
ARGUMENT WE'RE TALKING ABOUT
PRACTICAL REAL WORLD THINGS.
IT'S SOMETHING THAT I FIND
WHETHER ABOUT DUE PROCESS AND
THIS IDEA THAT YOU COULD
CHALLENGE THIS JUST DOESN’T
SEEM RIGHT WHICH IS TELL ME WHY
THE FIFTH DISTRICT IS WRONG.
>> COUPLE QUESTIONS IN THERE,
AND I'M, I'LL TRY TO GET TO ALL
OF THEM.
>> I WANT TO TALK ABOUT
THE PRACTICAL EFFECT YOU
WEREN'T TRYING TO WITHDRAW THE
PLEA.
>> I AM NOT TRY TO CHANGE.
>> A DEFECT IN THIS INFORMATION
ONCE ITS NOT CORRECTED COULD BE
CHALLENGED AT ANYTIME AS THEN
RESULTING IN A LEGAL SENTENCE.
>> JEOPARDY IS ATTACHED.
ONCE THE PLEA IS ACCEPTED.
SO TO WITHDRAW THE PLEA AND
ALLOW THE STATE TO AMEND THE
INFORMATION OR ALLOW THE STATE
TO AMEND THE INFORMATION
WITHOUT CHANGING THE PLEA WOULD
VIOLATE DOUBLE JEOPARDY AT THIS
POINT.
>> LET'S LOOK AT THIS CASE AS
JUSTICE PARIENTE SAID.
AT THE PLEA HEARING THE
ATTORNEY FOR MR.^BRADLEY SAYS
WE STIPULATE THE FACTS ALLEGED
IN THE COMPLAINT AFFIDAVIT IN
THE COURT FILE WOULD PROVIDE A
PRIMA FACIE CASE FOR EACH
CHARGE PLED TO, NOT EACH CHARGE
THAT WAS CHARGED.
BUT EACH CHARGE THAT IS PLED
TO.
>> RIGHT.
>> AND WHAT DOES THE COMPLAINT
AFFIDAVIT HAVE IN IT EXCEPT ALL
OF THE INFORMATION ABOUT HOW
THIS CRIME WAS COMMITTED.
AND HOW MR.^BRADLEY WENT UP TO
THIS PERSON, PUT, DISPLAYED THE
GUN, TOLD HER I WANT YOUR
MONEY.
AND WHEN THIS PERSON WHO WAS A
FOREIGNER AND OBVIOUSLY DIDN'T
UNDERSTAND EXACTLY WHAT WAS
GOING ON, SOMEWHAT RESISTED,
HE, HE ATTEMPTS TO SHOOT HER.
THE GUN MISFIRES, AND THEN HE
IN FACT ON THE THIRD TRY SHOOTS
HER IN THE STOMACH.
THIS IS WHAT HE HAS PLED TO.
TELL ME WHAT IS WRONG THEN.
>> BECAUSE IT A COMPLAINT
AFFIDAVIT IS NOT A CHARGING
DOCUMENT.
>> BUT THE --
>> BUT THE ATTORNEY
SPECIFICALLY SAYS THAT WE ARE
PLEADING TO THE FACTS.
AS ALLEGED IN THAT AFFIDAVIT.
>> NO, I BELIEVE HE SAYS WE'RE
PLEADING -- THAT WE STIPULATE
THAT THE COMPLAINT AFFIDAVIT
PROVIDES A PRIMA FACIE CASE TO
THE CHARGES PLED TO.
HE PLED TO WHAT WAS CHARGED,
AND THAT WAS THAT HE POSSESSED
OR CARRIED A FIREARM.
>> LET ME ASK YOU A BROADER
QUESTION THAT REALLY I THINK
TROUBLED MOST OF US.
THAT IS THAT ALTHOUGH HERE IT'S
THE DEFENDANT AS OPPOSED TO THE
STATE, WHATEVER, THAT, THAT ON
ITS FACE THIS APPEARS TO BE THE
PHRASE THAT'S MOST POPULARLY
USED OUT THERE IN THE CASE LAW
BY THE LEGAL SCHOLARS AND
JUDGES WRITING ON THIS, IT
LOOKS LIKE A GOTCHA.
THAT IS, THAT THIS IS
RIDICULOUS.
THAT IS THAT THE DEFENDANT IN
THE WORDS OF HIS LAWYER IS
TRYING TO AVOID SOME MUCH MORE
SERIOUS CONSEQUENCE HERE OF,
AND, AND SOUNDS TO ME LIKE
PROBABLY THE DEFENDANT IS
BECAUSE IN THE OLDEN DAYS, THE
WOUND OF THE STOMACH -- A WOUND
TO THE STOMACH BACK IN OUR
AMERICAN CIVIL WAR WAS 100%
FATAL.
>> MM-HMM.
>> ANYWAY,.
>> WHICH BRINGS ME TO THE --
>> THE DEFENDANT IS TRYING TO
AVOID -- OKAY.
>> WHICH BRINGS ME TO --
>> HERE WE HAVE ABOUT AS
LITERAL OR EXPRESS AN
ACKNOWLEDGMENT OF THE
APPLICABILITY OF THIS STATUTE
AS YOU CAN GET.
AND NOW AFTER IT IS JUST AS
CLEAR AS CLEAR CAN BE, THAT
EVERYBODY'S ON THE SAME PAGE,
THAT LOW AND BEHOLD, IT JUST
SEEMS TO BE WHAT THE PUBLIC
WOULD SEE AS THE CLASSIC USE OF
SOME LEGAL TECHNICALITY THAT
MAKES ABSOLUTELY NO SENSE
WHATSOEVER.
SO I AM VERY TROUBLED, I'M
ALMOST TROUBLED THAT YOU WOULD
BE HERE.
ADVOCATING THAT WHAT, WHAT THAT
THE DEAL THAT WAS MADE THERE,
SO EXPRESSLY SHOULD BE SET
ASIDE.
SO HELP ME WITH, WITH WHY WE,
WE SHOULD CONSIDER THIS IN THAT
CONTEXT AND REALLY CREATE WHAT,
WHAT THEN AMOUNT TO ALMOST AN
ABSURDITY.
THAT IS, THE OLD PHRASE FROM
THE ENGLISH LAW, IF THIS IS
WHAT THE LAW IS, THEN THE LAW'S
AN.
>> I'M GLAD YOU BROUGHT THAT UP
BECAUSE I THINK THAT DOVETAILS
INTO JUSTICE QUINCE'S QUESTION
OF WHAT HE PLED TO.
THE INFORMATION IN THE
COMPLAINT SUPPORTS A CONCLUSION
THAT HE NOT ONLY DISCHARGE THE
FIREARM, BUT HE CAUSED GREAT
BODILY HARM.
THAT'S 21 MINIMUM MANDATORY
THEN HE SHOULD BE HERE FOR 25
TO LIFE MINIMUM MANDATORY BUT
WE ARE NOT -- WE ARE --
>> DOES THE STATE HAVE THE
RIGHT TO PLEAD DOWN FROM THAT?
>> BUT THEY DIDN'T, IS THE
THING.
THEY NEVER CHANGED THEIR
CHARGING DOCUMENT.
>> LET ME GET THIS RIGHT.
IF -- I FEEL LIKE WE HAVE HAD A
CASE, DEFECT IN INFORMATION,
BECAUSE IT DIDN'T ALLEGE
DISCHARGE.
IT ONLY SAID CARRY.
IT CAN BE RAISED.
-- GENERAL PRINCIPLE OF LAW.
CAN DEFECT IN INFORMATION BE
WAIVED -- IF THERE'S NO
OBJECTION OR CAN IT BE RAISED,
BELIEVE ME A LOT OF PER SE
PETITIONERS AND THEY GO BACK TO
SOMETHING IN THEIR INFORMATION
OR INDICTMENT THEY SAY THAT
WASN'T IN AND/OR -- SO CAN IT
BE WAIVED?
>> IF IT WHOLLY FAILS TO OMIT
AN ESSENTIAL ELEMENT OF THE
CRIME IT CAN BE RAISED AT ANY
TIME.
THIS COURT SO HELD IN STATE v.
GRAY IN 1983.
THAT --
>> THIS DIDN'T FAIL TO ALLEGE
AN ESSENTIAL ELEMENT OF THE
CRIME.
>> YES IT DID.
BECAUSE THE CASE LAW HAS HELD
THAT THESE ENHANCEMENT UNDER
THE 10-20-LIFE ARE ESSENTIAL
ELEMENTS.
>> AND HOW DOES THAT DOVETAIL
TO -- INTO THE REQUIREMENT
UNDER RULE 3.190 THAT REQUIRES
YOU TO FILE A MOTION IF THERE
IS A PROBLEM WITH THE
INFORMATION AND CASE LAW THAT I
KNOW AS JUSTICE PARIENTE SAYS
THAT IS OUT THERE THAT TALKS
ABOUT IF THERE'S A DEFECT IN AN
INFORMATION, IF YOU DON'T RAISE
IT, AND IF IT'S NOT AN ISSUE
THAT IS LITIGATED, OR DISCUSSED
AT TRIAL AND IN THIS SITUATION,
IT CERTAINLY WAS NOT DISCUSSED
AT THE PLEA HEARING, THAT YOU
HAVE WAIVED IT.
>> THERE WAS NO DEFECT WITH THE
INFORMATION HERE.
IT CHARGED A CRIME T. ONLY
CHARGED THAT HE POSSESSED, OR
POSSESSED AND CARRIED --
POSSESSION OF AND CARRIED A FOR
EXAMPLE.
>> SO WHAT YOU ARE SAYING
HERE --
>> THAT ISN'T DEFECTIVE.
>> AT THE PLEA HEARING TWO FINE
LAWYERS LOOKED BACK AND SAID WE
LOOKED BACK AT THAT INFORMATION
AND BY THE WAY, JUDGE, THE
STATE DOES -- WE WOULD LIKE TO
MAKE SURE THAT THE AMENDMENT,
THAT THE INFORMATION CONFORMS
WITH WHAT HE IS PLEADING TO.
CAN YOU PLEASE ALLOW US TO
CHANGE THE INFORMATION --
NOTHING WOULD'VE BEEN WRONG
WITH IT.
>> THAT'S RIGHT.
>> IF THIS WENT TO TRIAL AND
THERE WAS A, LET ME ASK YOU
THIS, IF IT WENT TO TRIAL AND
THE INFORMATION INSTEAD OF
INFORMATION THERE WAS A SPECIAL
VERDICT FORM THAT SAID DID
MR.^BRADLEY DISCHARGE A FIREARM
AND THE DEFENDANT FOUND THAT,
AND THE JURY FOUNDS, YES, HE
DISCHARGED, FOR EXAMPLE, AND --
DISCHARGED A FIREARM WOULD THAT
BE DEFECTIVE CONVICTION BECAUSE
IF NO ONE POINTED OUT TO THE
STATE -- EVEN THOUGH EVERYONE
CHARGED IT BASED ON HE
DISCHARGED THE FIREARM, WOULD
THAT BE FATAL TO HIS
CONVICTION?
>> YES, I THINK IT WOULD.
>> UNDER WHAT CASE IS THAT?
>> SECOND DISTRICT COURT OF
APPEAL.
NOT IN A JURY CONTEXT BUT IN A
NONJURY TRIAL CONTEXT.
>> ROGERS CASE?
>> ROGERS v. STATE.
THAT WAS A NONJURY TRIAL WHERE
THEY ONLY ALLEGED CARRIED A
FIREARM OR USED A FIREARM I
BELIEVE IN THE LANGUAGE BUT THE
-- JUDGE IN THE COURSE OF HIS
FINDINGS OF FACT AS A TRIER OF
FACT IN THAT MADE A SPECIFIC
FINDING THAT HE DISCHARGED THE
FIREARM.
AND ON APPEAL THE SECOND
DISTRICT COURT OF APPEAL SAID
SORRY HE WAS NEVER CHARGED WITH
THAT.
>> THERE'S THAT, DOES MOBILE
FROM THE FIRST DIRECT HELP YOU.
>> YES, I BELIEVE IT DOES.
>> SO YOU HAVE GOT REALLY --
HOW ARE THE DISTRICT COURTS ON
THIS.
>> THE DISTRICT COURTS HAVE
LINED UP IN ACCORD WITH THE
FOURTH DISTRICT EXCEPT FOR THE
FIFTH DISTRICT.
>> SO EVEN THOUGH WE ARE
STANDING UP HERE AND SITTING
HERE AND YOU ARE STANDING DOWN
THERE SAYING THIS ALL SOUNDS
ABSURD BUT YOU ARE TELLING US
IF WE LOOK AT ALL THE OTHER
DISTRICTS, THEY BOUGHT INTO
THIS ABSURDITY.
>> YES, THE JACKSON CASE WE ARE
HERE ON THE CONFLICT ISSUE IS
THE, VIRTUALLY THE ACT AIM --
EXACT SAME FACTS.
AND THE FOURTH DISTRICT -- IT
IS HERE ON CERTIFIED CONFLICT,
CORRECT.
>> RIGHT.
AND THE FOURTH DISTRICT SAID
IT'S A QUESTION OF ITS AN
ILLEGAL SENTENCE BECAUSE YOU
CANNOT STIPULATE TO AN ILLEGAL
SENTENCE.
THAT SENTENCE, THAT MANDATORY
MINIMUM CAN ONLY BE IMPOSED,
THE 20-YEAR, IF IT'S ALLEGED IN
THE, IN THE THING.
WHEN YOU --
>> IT WAS MY UNDERSTANDING THAT
THE FIRST, THE SECOND, AND THE
FIFTH HAVE FOUND THAT A PLEA
CONSTITUTES AN AMENDMENT TO THE
INFORMATION AND YOU ARE TELLING
US IT'S ONLY THE FIFTH.
>> NOT IN THE CONTEXT OF
10-20-LIFE.
IN THE CONTEXT OF 10-20-LIFE.
THE FIRST, THE SECOND, I DON'T
THINK THE THIRD HAS EVEN
DECIDED THE ISSUE.
THEY'RE THE ONLY ONES I WASN'T
ABLE TO FIND A THIRD DCA CASE
BUT THE FIRST, THE SECOND, AND
THE FOURTH HAVE ALL GONE ALONG
WITH THE JACKSON CASE.
AND THEY HAVE CITED IT.
WITH APPROVAL.
>> MAY I ASK A QUESTION?
IT'S SORT OF, AND I GUESS I
SHOULD REALLY ASK MR.^JOLLEY,
IT SEEMS TO ME CAN THEY NOT
PLEAD IN THE ALTERNATIVE IN THE
INFORMATION HE EITHER CARRIED
OR DISCHARGED A FIREARM?
>> I THINK THEY COULD.
>> BUT THEY -- THEY DIDN'T IN
THIS CASE.
>> HAVE THEY DONE THAT?
I MEAN IS THAT AS A, YOU KNOW,
IN YOUR EXPERIENCE, IS
10-20-LIFE COME IN, HAVE THEY
PLED THE INFORMATION IN THE
ALTERNATIVE?
>> NO.
MY EXPERIENCE SEEING THESE ARE
THE MAJORITY OF TIME THE
STATE'S VERY SPECIFIC IN THEIR
CHARGE.
>> THEY SAY DISCHARGE?
>> THEY SAY -- IF THAT'S WHAT
THEY'RE ALLEGING.
I MEAN, I'M NOT SAYING IN EVERY
CASE BUT CERTAINLY THE ONES
THAT I'M FAMILIAR WITH, THAT'S
USUALLY THE LANGUAGE THAT COMES
ABOUT.
I'M CONCERNED THAT, AND PART OF
THE ARGUMENT THAT I'M MAKING
TODAY IS, IS REALLY KIND OF
ALMOST A PUBLIC POLICY
ARGUMENT.
THIS WHOLE CONCEPT OF IMPLICIT
AMENDMENT IS SOMETHING THAT'S
VERY, VERY DANGEROUS, AND I
DON'T THINK THAT THIS COURT
SHOULD PUT ITS STAMP OF
APPROVAL IN THAT.
THE STATE HAS THE SOLE POWER
TO CHARGE PEOPLE.
THEY AND THEY ALONE MAKE THE
DECISIONS TO ALLOW A DEFENDANT
OR A TRIAL COURT TO GET UP
THERE AND SAY THROUGH THEIR
SPEAKING AT A PLEA HEARING OR
WHATEVER TO CONSTITUTE AN
IMPLICIT AMENDMENT --
>> [INAUDIBLE]
>> PARDON ME?
>> EVERYBODY AGREES [INAUDIBLE]
STIPULATION, THE DEFENSE LAWYER
EXPLAINED WHAT THE STIPULATION
WAS, TRIAL COURT ASKED, THEY
DIDN'T ACCEPT THAT, AND THE
STATE SAID YES.
SO EVERYBODY KNEW WHAT WAS GOING
ON.
>> RIGHT.
BUT AGAIN --
>> SPECIFICALLY, UNEQUIVOCALLY
AGREED TO, ISN'T THAT CORRECT?
>> YES.
THIS WAS A VERY INTERESTING CASE
BECAUSE THE PLEA HEARING, IF
YOU'LL NOTICE, THE STATE
ATTORNEY WAS ABSOLUTELY SILENT
THROUGHOUT THE ENTIRE PLEA
HEARING.
THE ONLY THING SHE SAID WAS AT
THE VERY END, YES, BASICALLY.
WE AGREE TO THAT.
I MEAN, SHE DIDN'T SET FORTH THE
TERMS OF THE PLEA AGREEMENT,
WHICH THEY USUALLY DO.
SHE DIDN'T SET FORTH --
>> WELL, THIS WAS REALLY A PLEA
THAT WAS QUITE FAVORABLE TO THE
DEFENDANT.
SO THE DEFENSE ATTORNEY IN THIS
CASE SEEMED VERY EAGER TO GET,
TO GET YOUR CLIENT A 20-YEAR
SENTENCE AS OPPOSED TO A LIFE
SENTENCE.
>> YES.
>> AND THE STATE ATTORNEY WAS
WILLING TO GO ALONG WITH THAT.
>> AGAIN, I'M NOT DISPUTING
THAT, WHAT DEFENSE COUNSEL SAID
HERE.
BUT THE QUESTION ARISES, SHOULD
ANYONE BE ABLE TO STIPULATE TO
SOMETHING THAT ISN'T ALLOWED
UNDER THE LAW?
>> SEEMS TO ME YOU MIGHT HAVE A
VERY GOOD AND EFFECTIVE
ASSISTANCE OF COUNSEL CLAIM, BUT
WHETHER OR NOT YOU -- I'M JUST
DISTURBED THAT EVERYONE HERE
REALLY UNDERSTOOD WHAT WAS GOING
ON TO THE POINT THAT WE EVEN
REFER BACK TO THE AFFIDAVIT AS
OPPOSED TO THE INFORMATION THAT
WAS FILED, AND IT'S CLEAR THAT
THAT AFFIDAVIT HAD THE DISPLAY
AND USE OF A FIREARM.
>> OKAY.
JUSTICE QUINCE, I WILL SAY THIS:
THE PLEA IN THIS CASE OCCURRED,
I BELIEVE IT WAS JULY 3RD.
THE JACKSON CASE CAME OUT THE
FOLLOWING AUGUST 27TH, AND
SHORTLY THEREAFTER IS WHEN THE
MOTION WAS FILED.
SO THE JACKSON CASE WASN'T OUT
THERE AT THE TIME OF THE PLEA.
A GOOD ATTORNEY WILL SAY, OH,
THIS NEEDS TO BE DONE.
NOW, THE ATTORNEY WHO FILED THE
MOTION TO CORRECT THE SENTENCE
IS NOT THE SAME TRIAL ATTORNEY.
>> LET ME GO BACK TO SOMETHING
YOU SAID.
YOU SAID YOU CAN'T STIPULATE TO
WHAT IS NOT ALLOWED UNDER THE
LAW.
NOW, I AGREE WITH THAT, THAT IS
IF A SENTENCE IS UNDER THE LAW
IS THE MAXIMUM SENTENCE IS 20
YEARS OR 15 YEARS AND SOMEHOW
SOMEBODY ENDS UP PLEADING TO A
40-YEAR SENTENCE, WE HAVE MANY
CASES THAT SAY THAT CAN'T BE
DONE.
OR IF IN THIS CASE, YOU KNOW,
THEY CHARGED, YOU KNOW, ARMED
ROBBERY, AND HE ENDED UP
PLEADING TO ANOTHER FELONY, YOU
KNOW, I DON'T KNOW IF THEY
CHARGED ATTEMPTED FELONY MURDER?

>> HE WAS --
>> WELL, HE WAS THAT.
OKAY.
LET'S JUST ASSUME THEY ONLY
CHARGED ARMED ROBBERY, AND HE
PLED TO ANOTHER CRIME THAT
WASN'T CHARGED.
WE NOW HAVE ANOTHER SITUATION.
THAT'S TRULY WHERE THE
ILLEGALITY COMES IN.
BUT HERE YOU'RE TALKING ABOUT A
SENTENCE ENHANCEMENT.
I SEE THAT AS BEING A VARIANCE
BETWEEN THE INFORMATION AND WHAT
HE PLED TO, AND YOU'RE SAYING
THAT'S FATAL.
AND WE'RE ALL SAYING, BUT WAIT A
SECOND, HE WAS ON NOTICE.
EVERYBODY WAS ON NOTICE.
THEY WERE GOING UNDER THE
MANDATORY 10-20-LIFE STATUTE,
AND THAT'S WHAT THE DEFENSE
LAWYER WANTED TO GET THE BEST
DEAL FOR HIS CLIENT.
SO I DON'T SEE IT AS THE SAME AS
YOU CAN'T STIPULATE TO WHAT IS
NOT ALLOWED UNDER THE LAW.
SO COULD YOU ADDRESS THE
DISTINCTION BETWEEN THINGS THAT
WE'VE SAID ARE TRULY ILLEGAL
WHERE SENTENCES ARE AGREED TO IN
EXCESS OF THE MAXIMUM VERSUS
THIS SITUATION.

>> NOW, OF COURSE, THIS COURT
CAN DISAGREE WITH THE OTHER
COURTS, BUT THE COURTS HAVE HELD
THAT THE ENHANCEMENT PROVISIONS
OF THE 10-20-LIFE ARE ESSENTIAL
ELEMENTS OF THE CRIME.
THEY MUST BE ALLEGED TO SUPPORT
THE IMPOSITION OF THAT
ENHANCEMENT.
THEREFORE, IF YOU'RE GOING TO
GET THE 25-LIFE, YOU MUST
ALLEGE, DISCHARGE GREAT BODILY
HARM.
IF YOU DON'T ALLEGE THAT AND
IT'S IMPOSED, THE FOURTH
DISTRICT CERTAINLY IN JACKSON
AND AGREEING WITH JACKSON HAVE
HELD THAT'S AN ILLEGAL SENTENCE.
SO THAT'S SOMETHING THAT CAN'T
BE DONE UNDER THE LAW.
SO I SUGGEST THAT IT IS THE SAME
THING AS --
>> EVEN WITH THE CONSENT OF THE
DEFENDANT?
>> I DON'T BELIEVE THE --
>> WHAT'S THE CASE THAT SAYS
EVEN WITH THE CONSENT OF THE
DEFENDANT?
>> I BELIEVE I'VE CITED IN
THE --
>> BECAUSE YOU'VE AGREED THAT IF
THE STATE ATTORNEY WANTED TO
AMEND IT TO CONFORM TO THE
AFFIDAVIT IT, THAT THAT COULD
HAVE BEEN DONE, AND I THINK
YOU'VE AGREED THAT IF IT WAS
MADE EXPLICIT AT THE TIME, THAT
IS, IF IT WAS BROUGHT UP THAT
THE DEFENDANT ALSO COULD HAVE
WAIVED --
>> RIGHT, RIGHT.
OKAY.
THE CASES ARE -- JACKSON SAYS
THAT A DEFENDANT CANNOT AGREE TO
AN ILLEGAL SENTENCE.
MOBLEY SAYS THAT AND LEAVITT OUT
OF THE FIRST DISTRICT.
>> AND WHAT IS YOUR DEFINITION
OF AN ILLEGAL SENTENCE?
>> A SENTENCE THAT, WELL, I'LL
GO WITH WHAT THE FOURTH SAID IN
JACKSON, A SENTENCE THAT IMPOSES
A MANDATORY MINIMUM UNDER THE
10-20-LIFE THAT IS NOT SUPPORTED
BY THE CHARGING DOCUMENT.
>> WHAT HAVE WE, THIS COURT,
SAID IS AN ILLEGAL SENTENCE?
[LAUGHTER]
>> WELL, ON VARIOUS OCCASIONS
THIS COURT HAS SAID THAT AN
ILLEGAL SENTENCE IS ONE THAT
EXCEEDS THE STATUTORY MAXIMUM,
IS ONE THAT --
>> WELL, WE'VE HAD A DEFINITION
THAT --
>> THAT NO JUDGE IN COURT, NO
COURT IN THE WORLD COULD -- OR
IN THE UNIVERSE COULD IMPOSE.
AND ACCORDING TO THE FOURTH,
FIRST, AND SECOND DISTRICTS THIS
IS ONE OF THOSE.
THEY HAVE NO PROBLEM WITH
CALLING THIS AN ILLEGAL SENTENCE
WHEN THAT IS DONE.

>> YOU ARE WELL IN YOUR REBUTTAL
IF YOU WOULD LIKE TO RESERVE A
MINUTE OR SO.
>> AND I WOULD, BUT I'D MAKE ONE
LAST COMMENT.
THE FIFTH IN THEIR OPINION SAID
THE RULES OF PROCEDURE ARE NOT
TO BE USED AS A MEANS TO ESCAPE
JUSTICE, BUT THEY'RE CALLED
RULES OF PROCEDURE, NOT
SUGGESTIONS OF PROCEDURE.
IT'S CASE LAW THAT SAYS THESE
ARE ESSENTIAL ELEMENTS.
THEY'RE NOT SUGGESTIONS, IT'S
LAW.
THE STATE SHOULD HAVE TO FOLLOW
THESE, TOO, AND TO PERMIT THE
STATE TO JUST GET BY ON SLOPPY
PLEADING OR WHATEVER, THIS COURT
SHOULD NOT COUNTENANCE THAT.
THANK YOU.

>> GOOD MORNING.
MAY IT PLEASE THE COURT, I'M
ASSISTANT ATTORNEY GENERAL MARY
JOLLEY REPRESENTING THE COURT IN
THIS CASE.
THE KEY FACT IS THAT THIS IS A
PLEA --
>> LET'S LOOK AT THIS
INFORMATION.
>> SURE.

>> YOU GO THROUGH THE
INFORMATION THAT WAS FILED IN
THIS CASE --
>> UH-HUH.
>> AND YOU'VE GOT TWO COUNTS.
>> CORRECT.
>> THE FIRST ONE WHICH TALKS
ABOUT AN ACT THAT IS NOT AN
ESSENTIAL ELEMENT OF ARMED
ROBBERY AND/OR ROBBERY AND THAT
COULD HAVE BUT DID NOT CAUSE THE
DEATH OF THE VICTIM NEVER SAYS
OF THIS ACT THE PERSON WAS SHOT.
AND SO THERE'S NO ALLEGATION IN
THAT PARTICULAR COUNT ABOUT THE
USE OF A FIREARM.
>> CORRECT.
>> AND THEN YOU GET TO THE
SECOND COUNT OF THE INFORMATION,
AND IT SAYS, AND IN THE COURSE
OF COMMITTING THE ROBBERY, RICKY
BRADLEY WAS IN POSSESSION OF AND
CARRIED A FIREARM.
NEITHER ONE OF THOSE COUNTS
WOULD PUT A DEFENDANT ON NOTICE
THAT WE ARE TALKING ABOUT A USE
OR DISCHARGE OF THE FIREARM AS
OPPOSED TO SIMPLY HAVING THE
FIREARM IN HIS POSSESSION.
AND SO WHY ISN'T THIS A
DEFECTIVE AND FATAL?

>> I DON'T THINK --
>> INFORMATION?
>> IT'S OUR POSITION THAT ONE
CAVEAT ON THAT IS THAT AT THE
END OF COUNT TWO, WHICH IS WHERE
THE DEFENDANT RECEIVED THE
20-YEAR MINIMUM MANDATORY, HE
DIDN'T RECEIVE ID FOR --
>> SUBSECTION 2 HAS THREE
SECTIONS.
>> CORRECT.
>> THE FIRST ONE IS ABOUT
POSSESSION OF THE FIREARM.
>> CORRECT.
>> AND THEN THE OTHER TWO TALK
ABOUT USE OF THE FIREARM,
DISPLAY OF THE FIREARM, AND THEN
WHETHER THERE'S SERIOUS BODILY
INJURY.
SO HOW DOES THAT HELP TO PUT A
DEFENDANT ON NOTICE THAT OF
WHICH PART OF 775.0872 THAT
YOU'RE TALKING ABOUT?
>> IT PUTS IT ON NOTICE, AND WE
HAVE TO LOOK AT THIS, JUSTICE
QUINCE, IN TERMS OF THE FACTS OF
THIS CASE IN TERMS OF A PLEA.
AND THE ONLY WAY THAT HE CAN
FIND A VIOLATION, THIS COURT
TELLS YOU YOU CAN WAIVE
DEFECTIVE INFORMATION.
IN A CASE THAT I CITED IN MY
BRIEF, DuBOISE, THEY'VE WAIVED
MATERIAL ELEMENT OF A CRIME, AND
THAT'S BECAUSE THERE WAS A
REFERENCE TO THAT STATUTORY
CRIME AS IT'S LISTED IN THE
CHARGING DOCUMENT THAT THAT'S
ENOUGH TO PUT A DEFENDANT ON
NOTICE.
THE INFORMATION'S NOT DEFECTIVE
COUPLED WITH THE FACT THAT THIS
PLEA WAS BASED SPECIFICALLY ON
DISCHARGE.
FOR THIS DEFENDANT TO COME
FORWARD AND ARGUE BEFORE THIS
COURT THAT HIS SENTENCE IS
ILLEGAL BASED UPON A
CONSTITUTIONAL VIOLATION WHICH
HAS TO BE DUE PROCESS, HE HAS TO
SHOW LACK OF NOTICE AND
PREJUDICE WHICH HE CAN'T SHOW
HERE.
HE'S NOT ENTITLED TO RELIEF
UNDER 3800A BASED UPON AN
ILLEGAL SENTENCE.
>> SO ARE YOU SAYING HE HAS TO
SHOW BOTH OF THOSE?
>> ABSOLUTELY.
>> LACK OF NOTICE AND PREJUDICE?
DO YOU AGREE THERE WAS LACK OF
NOTICE HERE?
>> I DISAGREE BECAUSE WITH THIS
AND THE CHARGING INFORMATION AND
THE BASIS OF HIS NEGOTIATED PLEA
WHICH WAS STIPULATED TO
DISCHARGE, THERE CAN'T BE ANY
LACK OF NOTICE.
HE DIDN'T KNOW THAT DISCHARGE
WAS PART OF -- THEN HIS PLEA
BECOMES NOT KNOWING.
HE'S NEVER ALLEGED THAT, SO HOW
CAN HE SAY NOW THERE'S NO NOTICE
OR PREJUDICE?
>> SO YOU'RE SAYING THAT SINCE
STATE V. GRAY THIS COURT HAS
EXPLAINED THAT THERE COULD BE A
WAIVER OF A DEFECT?
>> DuBOISE V. STATE, WHICH I
HAVE QUOTED IN MY BRIEF AS BEING
QUOTED FROM ANOTHER DCA OPINION,
FAILURE TO INCLUDE AN ESSENTIAL
ELEMENT OF A CRIME DOES NOT
NECESSARILY RENDER AN INDICTMENT
WHEN INDICTMENT REFERENCED
SPECIFIC SECTION OF THE CRIMINAL
CODE IS INCLUDED AND THAT
SUBSEQUENTLY, IT'S NOT IN MY
BRIEF, SO I WON'T RELY ON IT,
BUT I'LL MENTION FORD V. STATE,
ANOTHER DECISION OUT OF THIS
COURT RELATING TO ELEMENTS OF A
SUBSTANTIVE CRIME, NOT EVEN A
SENTENCING STATUTE.
IT'S OUR POSITION THAT IT'S NOT
FUNDAMENTAL, IT'S NOT DEFECTIVE,
AND I THINK THIS COURT ALSO
POINTED OUT DUE EMOTION FOR A
STATEMENT OF PARTICULARS IF
YOU'RE CONCERNED.
AND INFORMATION IS TO GIVE A
DEFENDANT NOTICE SO HE CAN
PREPARE A DISSENT AT TRIAL AND
THAT THEY HAVE SUFFICIENT
INFORMATION TO --
>> BUT THIS PROBLEM, YOU KNOW,
AGAIN, AND I'M SYMPATHETIC ON
THIS.
BUT THE STATE, YOU KNOW, THEY
KNOW WHAT THE CRIME IS, AND
INSTEAD OF SAYING CARRY OR
DISCHARGE, THEY SIMPLY SAY
CARRY.
AND IT'S LIKE WHAT'S THE STATE
THINKING?
THEY KNOW THE FACTS OF THE
CRIME, AND THEY'RE INTENDING TO
CHARGE AN ENHANCEMENT WHICH IS,
YOU KNOW, AGAIN, YOU WOULD AGREE
IF IT HAD BEEN -- LET ME ASK YOU
THIS WAY, THERE WAS NO MENTION
OF THAT ENHANCEMENT STATUTE,
COULD THE STATE AFTER THE
TRIAL -- AND THERE WAS A TRIAL.
>> OKAY.
>> COULD THE STATE HAVE ASKED
FOR AND RECEIVED THE MANDATORY
MINIMUM UNDER THE STATUTE?
>> UNFORTUNATELY, THE DCAS
EXCLUDING THE THIRD HAS HELD IN
THE CONTEXT OF A TRIAL THAT
THERE HAS TO BE A JURY FINDING,
AND IT HAS TO BE ALLEGED IN THE
INFORMATION.
>> OKAY.
SO THERE YOU WOULD HAVE HAD,
YOU'RE SAYING, AND WE DON'T
NECESSARILY NEED TO DISAPPROVE
THE ONES WHERE THERE'S A TRIAL,
THAT WHERE THE DEFENDANT ADMITS
TO THE ESSENTIAL ELEMENT, IS
THAT DEFENDANT THEN, YOU KNOW,
IT'S NOT A MISSING ELEMENT HERE.
OKAY, SO LET'S JUST, AGAIN, SAY
IT'S A PLEA, BUT NOTHING'S
ALLEGED ABOUT THE MANDATORY
MINIMUM.
BUT HE PLEADS TO THE MANDATORY
MINIMUM, AGAIN, TO GET A BETTER
DEAL.
>> CORRECT.
>> IS THAT, IS THAT THE SAME
THING, THAT IS, THAT NOTHING
ABOUT THE MANDATORY MINIMUM IS
IN THE INFORMATION?
>> UH-HUH.
>> ALL RIGHT, WHICH YOU'VE SAID,
OR YOUR OPPONENT SAID THE DCAs
HAVE SAID THAT'S AN ESSENTIAL
ELEMENT, BUT NOTHING ABOUT IT IS
IN THERE, BUT THE DEFENDANT
PLEADS TO IT.
CAN THAT BE DONE?
>> YES, ABSOLUTELY.
>> OKAY.
SO IT'S NOT THAT THIS COULD BE
MISLEADING, WELL, HE'S
CARRIED -- YOU'RE THINKING THIS
IS BETTER, ACTUALLY, WHEN YOU
REFERENCE THE ENHANCEMENT EVEN
THOUGH YOU'RE ONLY REFERENCING A
CARRYING.
>> YEAH.
WE CITE TO THE STATUTE AS A
WHOLE.
YOU KNOW, THE CASE LAW HAS
EVOLVED AND ACTUALLY, JUSTICE
KENNEDY, YOU NOTED IN A
DIFFERENT ROGERS CASE OUT OF THE
SECOND IN A FOOTNOTE THAT THIS
NOTION THAT THE MINIMUM
MANDATORY FACT THAT'S REQUIRED
TO IMPOSE HAS BECOME AN ELEMENT
OF THE CRIME.
LET'S UNDERSTAND SOMETHING, THE
STATE DIDN'T HAVE TO PROVE
DISCHARGE TO PROVE ARMED ROBBERY
HERE.
THAT'S THE CHARGE AND THE
CONVICTION FOR IT.
SO THE STATE'S CONVICTION IS
CLEAR IN THE CONTEXT OF A PLEA.
THE IMPOSITION OF THE MINIMUM
MANDATORY 10-20-LIFE, MOBLEY,
JACKSON, AND THE CASE THAT WE'RE
HERE, AND BRADLEY.
MOBLEY IS A 3800A CASE, JACKSON,
AGAIN, THE CASE THAT'S UP HERE
ON CONFLICT IS DIFFERENT BECAUSE
IT'S RAISED IN 3800B WHICH,
AGAIN, GOES BACK TO MY ARGUMENT
THE SENTENCE IS NOT ILLEGAL.
ANY SENTENCING ERROR THIS COURT
CAN REVIEW.
SO I WANTED TO REITERATE THERE'S
NO CONFLICT ERROR IN JACKSON --
WE DO HAVE HERE.
>> CAN I JUST GO BACK BECAUSE
YOU SAID A LOT OF THOUGHTS, YOU
KNOW, ON THIS.
I JUST WANT TO MAKE SURE I
UNDERSTAND THE PARAMETERS.
AGAIN, LET ME -- MAYBE I'M
CHANGING THE HYPOTHETICAL.
>> OKAY.
>> NOTHING IS CHARGED IN THE
INFORMATION ABOUT 10-20-LIFE.
>> OKAY.
>> IT'S NOT A PLEA.
IT GOES TO TRIAL, ALL RIGHT?
AND THE PERSON'S CONVICTED OF
ARMED ROBBERY.
THE JUDGE GOES TO SENTENCE.
THEY SENTENCE THEM TO LIFE IN
PRISON WITH A MANDATORY 20-YEAR
SENTENCE.
WE'RE ONLY REALLY TALKING ABOUT
THE ENHANCEMENT.
>> RIGHT.

>> IS THAT LEGAL OR ILLEGAL
SENTENCE?
>> STATE'S POSITION IS THAT'S A
LEGAL SENTENCE.
IF THEY PROVED THE CHARGE AND
THE FACTS SUPPORT IT, THEY CAN
BE SENTENCED --
>> SO YOU'RE SAYING THIS IS A
MORE FUNDAMENTAL THING WHICH
YOU'RE SAYING 10-20-LIFE DOESN'T
HAVE TO BE ALLEGED IN THE
INFORMATION?
>> YES.
THE DCAs DISAGREE.
>> IS THAT CORRECT?
WE DON'T HAVE TO REACH THAT
ISSUE HERE?
>> WE DON'T, NO.
YOU DON'T HAVE TO, PARTICULARLY
IN THIS CASE WHICH IS AN
UNKNOWING AND VOLUNTARY PLEA.
BUT REFERRING TO THAT FOOTNOTE
IN ROGERS THE CASE LAW, I THINK
IT ASSUMED THAT'S WHAT THE
LEGISLATURE IS INTENDING, BUT WE
DON'T HAVE TO REACH THAT HERE IN
TERMS OF A TRIAL AND JURY
FINDING.
BUT IT'S OUR POSITION THAT A
10-20-LIFE IS NOT AN ELEMENT OF
ROBBERY, THAT'S PLAIN.
IT DOESN'T BECOME AN ELEMENT OF
THE ACTUAL CRIME.
THE PROBLEM IN JACKSON AND
THAT'S COMPOUNDED IN MOBLEY
WHICH IS THE ONLY OTHER PLEA
CASE WHICH IS OUT OF THE FIRST
IS WHAT THEY'RE DOING HERE IS
THEY'RE FINDING BECAUSE
DISCHARGE IS NOT LISTED IN THE
INFORMATION, THE SENTENCE IS
BECOMING ILLEGAL.
AND I THINK WHEN THIS COURT LED
OFF WITH ITS QUESTIONING, IT'S,
OKAY, I WANT TO KEEP MY PLEA TO
TWO FIRST-DEGREE PENALTIES
PUNISHABLE BY LIFE, BUT I ONLY
WANT A TEN-YEAR SENTENCE.
THAT ERADICATES THIS NOTION OF A
DOUBLE JEOPARDY PROBLEM.
HE CAN'T HAVE THE BENEFIT OF HIS
PLEA BARGAIN, BUT THE STATE --
BUT THE PLEA HAS TO BE
WITHDRAWN.
AND I THINK THAT THE REMEDY IN
JACKSON OR THE RESOLUTION IN
JACKSON WHEN THEY FOUND THIS
ERROR, WHICH WE DON'T THINK
THERE EVEN IS ONE, AGAIN,
COMPOUNDS THE PROBLEM.
THERE'S NO RELIEF UNDER 3800A.
MOVE TO WITHDRAW YOUR PLEA
BECAUSE IT'S NOT KNOWING BECAUSE
I DIDN'T KNOW THAT DISCHARGE WAS
A PART OF IT WHICH CLEARLY UNDER
THE FACTS OF THIS CASE IT WAS
STIPULATED TO, IT WAS THE BASIS
FOR THIS NEGOTIATION.
THAT'S THE ONLY AVENUE THAT CAN
BE DONE IS FILE A 3800 AND
SAY --
>> THE APPELLANT ARGUING HERE
THAT THIS IS AN ILLEGAL SENTENCE
ACCORDING TO SOME OF THE
DISTRICT COURT CASE LAW THAT A
SENTENCE THAT IS IMPOSED, THAT
IMPOSES A MANDATORY MINIMUM OR
AN ENHANCEMENT --
>> CORRECT.
>> AND THAT ENHANCEMENT HAS NOT
BEEN PLED BECOMES AN ILLEGAL
SENTENCE.
>> THAT'S HIS ARGUMENT, AND I
DON'T THINK THAT COMPORTS WITH
WHAT THIS COURT HAS DEFINED AN
ILLEGAL SENTENCE TO BE.
WE ALL CONSIDER IT FOR 3800A AS
A SENTENCE THAT EXCEEDS THE
STATUTORY MAXIMUM.
WELL, A 20-YEAR SENTENCE CLEARLY
DOESN'T EXCEED THE LIFE SENTENCE
HE COULD GET, SO WE'RE NOT UNDER
THAT.
DOES IT HAVE A CONSTITUTIONAL
ASPECT WHICH I CITE IN MY BRIEF
THIS COURT HAS USED IN THE
LANGUAGE IN WRIGHT, IS IT A
CONSTITUTIONAL PROBLEM?
THERE'S NO CONSTITUTIONAL
PROBLEM BECAUSE THERE'S NO DUE
PROCESS PROBLEM.
SO THE SENTENCE IS NOT ILLEGAL
UNDER, UNDER 3800A, SO IT'S JUST
NOT AN AVENUE FOR RELIEF HERE.
AND, AGAIN, WE WANT THE PLEA TO
BE UPHELD, BUT I WANT MY
SENTENCE EVEN LOWER.
THE NOTION -- THIS IS A CLASSIC
INSTANCE WHERE LET'S GET OUR
CAKE AND EAT IT, TOO, WHEN YEARS
LATER, WELL, MONTHS LATER AFTER
JACKSON CAME AT IT, CANDIDLY,
OH, THAT ONE WORD IS NOT IN
THERE.
>> IT WAS A PLEA JUST TO A
20-YEAR SENTENCE?
>> YES, HE RECEIVED TWO
CONCURRENT 20-YEAR SENTENCES --
>> SO THE IDEA BEING THAT HE HAS
TO -- WHICH IS WHAT THE DEFENSE
LAWYER WAS VIGOROUSLY ARGUE --
HE HAD TO SERVE HIS 20 YEARS.
>> CORRECT.
AND THE DEFENSE ATTORNEY SAID HE
KNOWS HE WILL HAVE TO SERVE DAY
FOR DAY 20 YEARS --
>> AND WHAT THEY'RE REALLY
SAYING, WHAT THEY'RE SAYING IS
HE KEEPS HIS 20-YEAR SENTENCE,
BUT, WHAT, HE CAN BE ELIGIBLE --
I MEAN, I GUESS I NEED TO ASK
HIM WHAT THE RELIEF WOULD BE.
>> I THINK THE RELIEF IS TO DROP
DOWN TO JUST TEN YEARS.
>> WELL, IT WOULD HAVE TO BE A
20-YEAR SENTENCE.
>> WELL, THEY'RE CONCURRENTLY.
BUT THAT'S NOT A MINIMUM
MANDATORY.
>> AS A PRACTICAL MATTER, I
MEAN, I KNOW THESE ARE IMPORTANT
ISSUES.
THE WAY THE DOC GOES THESE DAYS
WITH A 20-YEAR SENTENCE, IT'S
REALLY UNLIKELY HE'D GET OUT
MUCH MORE THAN 20 YEARS.
>> MUCH MORE THAN 20 YEARS.
I THINK THE PROSECUTOR AT THE
3800A HEARING KIND OF
RESTRUCTURED THE SENTENCE, THAT
HE WOULD STILL HAVE TO SERVE
ALMOST THE 20 YEARS.
>> MUCH ADO ABOUT NOTHING, BUT
WE'RE NOT TALKING ABOUT
GET-OUT-OF-JAIL-FREE CARD HERE.
>> BUT MUCH --
>> CORRECT?
>> CORRECT.
BUT MUCH ADO ABOUT SOMETHING IN
THAT WE HAD TWO LIFE TERMS ON
THE TABLE HERE, AND THE STATE
CAME THROUGH AND NEGOTIATED AND
AGREED TO THIS PLEA DEAL.
HE CAN TALK ABOUT HOW THE
PROSECUTOR DIDN'T SAY ANYTHING
AT THE PLEA HEARING, BUT THE
DEFENSE ATTORNEY SAYS WE HAD
SIGNIFICANT, EXTENSIVE PLEA
NEGOTIATING HERE.
SO THIS COMES TOGETHER AS A
NEGOTIATED AGREEMENT.
WELL, BUT THE SENTENCING PART'S
NOT RIGHT.
WELL, THEN THE WHOLE THING'S GOT
TO COME DOWN, AND HE HAS TO COME
BACK AND ANSWER TO TWO LIFE
TERMS --
>> BUT THE POTENTIAL FOR THIS TO
COME UNRAVELED WITH THE STATE'S
MISTAKE.
>> THE STATE --
>> THE STATE KNOWING WHAT THE
FACTS HAPPENED IMMEDIATELY UPON
THE HAPPENING OF THE CRIME.
THE STATE IS THE ONE THAT HAD
THE OBLIGATION TO ALLEGE WHAT
THEY KNEW, WHAT THEY WERE GOING
TO RELY ON.
AND THAT IS THAT THERE WAS A
DISCHARGE.
BECAUSE THERE IS A DIFFERENT
CONSEQUENCE BETWEEN MERE
POSSESSION OR DISCHARGE AND, OF
COURSE, THE SERIES BODILY INJURY
OR DEATH THAT MAY FLOW FROM THAT
TOO.
BUT THE STATE IS THE ONE -- IN
OTHER WORDS, THE STATE IS NOT
COVERED IN GLORY IN THIS CASE BY
ITS PLEADING HERE.
A CAREFUL PROSECUTOR SHOULD HAVE
ALLEGED THAT THERE WAS A
DISCHARGE OF THIS WEAPON IF THEY
WERE GOING TO RELY ON THAT
ASPECT OF IT IN AN ENHANCED
SENTENCE.
>> ABSOLUTELY.
I DON'T DISAGREE THAT THAT -- IF
THAT HAD BEEN ALLEGED
PROPERLY --
>> AND THERE COULD BE A FAR
DIFFERENT OUTCOME TO THIS CASE
HAD THIS THING SIMPLY GONE TO
TRIAL UNDER AN INFORMATION LIKE
THIS, AND THEN WE'RE TALKING
ABOUT THIS BEING BROUGHT UP
AFTER THE SAME SENTENCE BUT
AFTER A TRIAL IN WHICH THERE WAS
NO PLEA OR STIPULATION.
>> UNDER THE POINT OF CASE LAW,
I AGREE, JUSTICE ANSTEAD.
WE HAVE TO BE CAREFUL --
>> YOU ARE RELYING HERE ENTIRELY
ON THE FACT THAT IT WAS VERY
EXPLICITLY MADE CLEAR WITH THE
AGREEMENT OF BOTH PARTIES AS TO
WHAT THE FACTS AND CIRCUMSTANCES
WERE AND WHAT THE POTENTIAL
SENTENCE COULD BE.
>> CORRECT.
WITH THE CAVEAT THAT, AND I
POINT THIS COURT TO THE KOCH
DECISION OUT OF THE FOURTH DCA
WHICH COMES OUT LATER WHERE THEY
FOUND THE REFERENCE TO THE
STATUTE WAS ENOUGH GIVEN THE
FACTS OF THAT CASE.
THAT'S THE ONLY ONE THAT I COULD
FIND THAT SOUNDED -- AND MY
RECOLLECTION IS A LITTLE OFF ON
THAT --
>> WAS THAT A PLEA CASE?
>> I KNEW YOU WERE GOING TO ASK
ME THAT, AND I TRIED TO FIND IT
IN MY PILE RIGHT BEFORE THE
ARGUMENT.
BUT I JUST WANT TO DIRECT THE
COURT THAT IT'S CITED IN MY
BRIEF.
IT CAN SATISFY LISTING IT IN THE
STATUTE, CAN SATISFY THAT
CONCERN.
>> I THINK THE PART THAT I'M
MOST -- THE ONLY PART THAT I'M
REALLY CONCERNED ABOUT IS THAT
WE END UP APPROVING A CONCEPT OF
IMPLICIT AMENDMENT OF
INFORMATIONS BECAUSE, I MEAN,
THIS ONE WE ALL THINK, AGAIN,
THESE ARE FACTS AND IT DOESN'T
SEEM JUST TO ALLOW HIM TO GET
ANYTHING OTHER THAN WHAT HE
BARGAINED FOR BECAUSE WE'RE NOT
TALKING ABOUT A DIFFERENT CRIME.
YOU AGREE THAT REALLY THIS IDEA
OF AN IMPLICIT AMENDMENT OF
INFORMATION IS REALLY NOT WHERE
WE'RE GOING HERE.
WHAT WE'RE SAYING IS THEY PLED
IT SUFFICIENTLY, AND BY HIM
HAVING PLED TO SPECIFIC
MANDATORY MINIMUM, THE
INFORMATION, THERE WAS NO DEFECT
IN THE INFORMATION.
>> CORRECT.
>> THAT, TO ME, IS A LITTLE
DIFFERENT BECAUSE OTHERWISE WE
DON'T WANT THE STATE WITH SLOPPY
INFORMATION DRAFT, AND, WELL, HE
PLED TO THAT OTHER CRIME, SO WE
DIDN'T HAVE TO AMEND THE
INFORMATION.
>> I AGREE WITH THAT.
THE FIFTH DCA DID RELY ON CASE
LAW, THOUGH, OUT OF THE SECOND
AND THE FOURTH.
THERE'S A LINE OF CASES THAT
HAVE NOTED BY AGREEMENT THAT
THERE CAN BE AN IMPLICIT
AMENDMENT.
>> WE DON'T NEED TO GET THERE
BECAUSE, AGAIN, I DON'T KNOW HOW
FAR YOU'D GO WITH IT.
YOU WOULDN'T WANT TO GO FROM A
CRIME THAT WAS TO SAY IF SIMPLE
ROBBERY WAS CHARGED, AND HE ENDS
UP PLEADING TO ARMED ROBBERY AND
WASN'T CHARGED, YOU KNOW, AT
SOME POINT YOU SAY JUST WHAT
JUSTICE ANSTEAD'S SAYING, THE
STATE SHOULD KNOW HOW TO PLEAD
AND PUT LANGUAGE AND
INFORMATION.
>> I AGREE.
THAT, CLEARLY, WE WANT TO START
CLEANLY WITH A PROPERLY-PLED
INFORMATION, BUT THAT'S NOT A
PER SE REVERSIBLE.
YOU STILL HAVE TO LOOK AT THEM
AT A FACTUAL BASIS OR KNOWINGLY
ENTER A PLEA.
SO IT CAN'T BE PIGEON-HOLED INTO
A BRIGHT LINE.
WHAT HAS TO BE LOOKED AT IS THE
TERMS OF THE FACTS OF EVEN CASE,
AND THIS COURT HAS FOUND DEFECTS
IN INFORMATION ARE CERTAINLY
WAIVEABLE.
THERE ARE REMEDIES FOR A
STATEMENT OF PARTICULARS IF
THEY'RE CONCERNED BEFORE THEY GO
TO TRIAL --
>> UNDER YOUR ARGUMENT HOW,
THEN, CAN THIS CASE OUT OF THE
FIFTH AND JACKSON LIVE OUT THERE
SIDE BY SIDE?

>> THEY CAN'T.
>> SO THERE IS NOT -- SO
ALTHOUGH YOU SAY WE SHOULD
DISCHARGE, REALLY THERE'S A NEED
TO RESOLVE.
>> JACKSON DOESN'T EVEN DO A DUE
PROCESS OR NOTICE ANALYSIS.
IT'S A BLANKET, IT'S ILLEGAL,
AND OUR POSITION, OBVIOUSLY BY
THE TONE OF MY VOICE, IS THAT IS
INCORRECT, AND MOBLEY COMPOUNDS
THAT PROBLEM.
THERE HAS TO BE A DETERMINATION
OF PREJUDICE OR AN ILLEGALITY IN
THE SENTENCE TO HAVE RELIEF
UNDER 3800, AND IT'S NOT THERE.
JACKSON AND MOBLEY ARE WRONG,
AND THIS COURT SHOULD, YOU KNOW,
DISAPPROVE MOBLEY AND UPHOLD
BRADLEY.
>> BUT YOU AGREE THERE IS A BIG
DIFFERENCE BETWEEN 3800B AND A.
>> CORRECT.
>> AND ARE YOU SAYING THAT
JACKSON WAS UNDER 3800B?
>> WHAT HAPPENED WAS HE WENT TO
TRIAL FOR TWO DAYS AND THEN
DECIDED WHEN HE SAW THE TRIAL --
I'M GOING TO GO AHEAD AND TAKE
THAT PLEA.
SO HE PLED AND FILED A DIRECT
APPEAL AND FILED HIS RELIEF
UNDER 3800B.
OURS THERE WAS NO DIRECT APPEAL,
SO THERE IS A JURISDICTIONAL
DIFFERENCE.
>> IT'S A DIFFERENCE IN THE
STANDARD FOR --
>> ABSOLUTELY.
>> FOR 3800B AND A.
>> RIGHT, WHICH CAN MAKE --
THERE'S NO EXPRESS AND DIRECT
CONFLICT BECAUSE IT'S A
DIFFERENT LEGAL ANALYSIS.
REALLY IF THIS COURT DOESN'T
WANT TO REACH IT, WE URGE YOU TO
LOOK AT WHAT'S GOING ON WITH
CASES LIKE JACKSON AND MOBLEY IN
PLEA CASES WHERE THERE HAD NEVER
BEEN AN ALLEGATION OF AN
UNKNOWING PLEA, AND WE'RE STILL
GOING TO TRY TO GET RELIEF.
AND THAT, TO ME, IS AN ERROR.
WE THANK YOU FOR YOUR
CONSIDERATION AND ASK THAT YOU
UPHOLD BRADLEY.
THANK YOU.
>> MR. BECKER, YOU'VE USED ALL
OF YOUR TIME, BUT WE'LL GIVE YOU
ONE MINUTE FOR REBUTTAL.
>> I WANT TO CLARIFY WHAT WE ARE
SEEKING.
WE'RE NOT SEEKING TO HAVE THE
SENTENCE REDUCED TO TEN YEARS,
WE ARE SEEKING TO UPHOLD THE
20-YEAR SENTENCES ON BOTH COUNTS
BUT REDUCE THE MANDATORY MINIMUM
ON THE SECOND COUNT TO TEN
YEARS.
>> WHY IS IT A BETTER SOLUTION
ASSUMING THAT WE AGREE WITH YOU
IS TO, IN FACT, HAVE THE PLEA
DECLARED A NULLITY AND HAVE THEM
GO TO TRIAL?
>> I DON'T THINK THERE'S
ANYTHING THAT --
>> WELL, IT SEEMS TO ME THAT HE,
THAT THE ARGUMENT CAN BE MADE
THAT THIS WAS AN INVOLUNTARY
PLEA BECAUSE HE PLED TO
SOMETHING THAT WAS NOT ALLEGED
IN THE INFORMATION.

>> BUT HE PLED TO THE 20-YEAR
SENTENCE.
AND THAT'S WHAT HE GOT.
>> BUT YOU'RE, BUT AS A PART OF
THIS ARGUMENT IT SEEMS TO ME
THAT YOU'RE SAYING HE PLED TO
ROBBERY, JUST CARRYING -- AND
CARRYING A WEAPON.
NOT ROBBERY DISPLAYING A WEAPON,
CORRECT?
>> BECAUSE THAT'S THE ONLY THING
THE STATE CHARGED.
AND THE STATE AND MS. JOLLEY
MENTIONED THERE WERE SIGNIFICANT
PLEA DISCUSSIONS.
IF THERE WERE SIGNIFICANT PLEA
DISCUSSIONS, IT WOULD HAVE BEEN
VERY SIMPLE FOR THE STATE TO
COME IN THE DAY OF THE PLEA
HEARING AND TO SAY, TO TIDY
THINGS UP WE HAVE THIS AMENDED
INFORMATION WHERE WE'VE PROPERLY
CHARGED HIM.
>> THANK YOU VERY MUCH.
THANK YOU.
COURT IS NOW ADJOURNED FOR
TODAY.
>> PLEASE RISE.