NOT FINAL UNTIL TIME EXPI RES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL

OF FLORIDA

SECOND DISTRICT JAMIE D. LEWIS, ) ) Appellant, ) ) v. ) Case No. 2D14-5502 ) STATE OF FLORIDA, ) ) Appellee. ) ___________________________________) Opinion filed October 9, 2015. Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Lee County; Edward J. Volz, Jr., Judge. Jamie D. Lewis, pro se. Pamela Jo Bondi, Attorney General, Tallahassee, and Johnny T. Salgado, Assistant Attorney General, Tampa, for Appellee.

MORRIS, Judge.

Jamie D. Lewis appeals the order summarily denying his motion to correct illegal sentence filed under Florida Rule of Criminal Procedure 3.800(a). We reverse. The State filed an information charging that Lewis did unlawfully, by an act imminently dangerous to another, and evincing a depraved mind regardless of human life, attempt to kill and murder Keith Thornton, a human being, by shooting Keith Thornton, and during the commission of the-2- offense actually possessed a firearm, contrary to Florida Statute 782.04(2); 777.04; 775.087(2)(a)(1). A jury found Lewis guilty as charged of attempted second-degree murder with a firearm, and the trial court sentenced him to twenty-five years' impriso nment with a twenty-fiveyear mandatory minimum under section 775.087(2)(a)(3), Florida Statutes (1999) (providing for the imposition of a twenty-five-year mandatory m inimum when a defendant inflicts death or great bodily harm through the disch arge of a firearm). In the rule 3.800(a) motion at issue in this appeal, Lewis arg ued that the mandatory minimum term of his sentence is illegal because the i nformation did not allege and the jury did not find that he caused great bodily ha rm. See Davis v. State, 884 So. 2d 1058, 1060 (Fla. 2d DCA 2004) (citing Whitehead v. S tate, 884 So. 2d 139, 140 (Fla. 2d DCA 2004) ("[T]he minimum terms mandated by the '1 0-20-Life' statute, section 775.087(2), cannot be legally imposed unless the statut ory elements are precisely charged in the informat ion.")); see also Arnett v. St ate, 128 So. 3d 87, 88 (Fla. 1st DCA 2013) (holding that the three-year minimum term mandate d by the 10-20-Life statute could not be legally imposed because the information di d not charge that Arnett actually possessed the firearm and the jury's finding of actual possession did not cure the charging defect). The postconviction court denied Lewis's motion, citing Lee v. State, 130 So. 3d 707 (Fla. 2d DCA 2013). But there is a crucial differen ce between Lee and this case—Lee challenged the jury's verdict, not the information fil ed against him. Unlike a challenge to the verdict, which can be harmless error, id. at 7 10, the failure to allege the facts necessary for imposition of a mandatory minimum term unde r section 775.087 renders the sentence illegal, see Whitehead, 884 So. 2d at 140.-3- The issue in this case is controlled by McKenzie v. State, 31 So. 3d 275, 276 (Fla. 2d DCA 2010), in which the jury found McKenzie guilty of two counts of attempted second-degree murder during the commission of which h e discharged a firearm resulting in great bodily harm to the victims, and the trial court imposed a twenty-five-year mandatory minimum sentence. However, the elem ent of great bodily harm was not alleged in the amended information, and this court held that a jury finding could not cure this defect. Id. Because the information alleg ed that McKenzie attempted to murder the victims by shooting at them with a fire arm and the jury found that he discharged a firearm in the course of committing the of fenses, this court held that the information and the jury verdict supported the imposit ion of a mandatory minimum of twenty years' imprisonment under section 775.087(2)( a)(2) for discharge of a weapon. Id. We reversed the or der denying McKenzie's rule 3 .800(a) motion and remanded for the postconviction c ourt to resentence McKenzie to a mandatory minimum of twenty years' imprisonment. Id. at 277. Similarly, in Daniel v. State, 935 So. 2d 1240, 1241 (Fla. 2d DCA 2006), the trial court sentenced Daniel to a twenty-five-year mandator y minimum sentence under section 775.087(2)(a)(3) after the jury found him guilty of attempted first-degree murder. However, while the jury found that Daniel discharged a firearm during the commission of the offense that resulted in death or great bodil y harm, the information merely alleged that Daniel attempted to kill the victim "by fir earm"; it did not allege that he discharged the firearm or that great bodily harm resulted. Id. This court held that "[n]either a jury finding nor inclusion of the appropriate stat ute number in the information can cure this fatal defect." Id. (quoting Davis, 884 So. 2d at 1061). Finding that-4- attempting to kill by firearm meant that Daniel committed the c rime by using a firearm, which in turn meant that he necessarily possessed the firearm, this court reversed the twenty-five-year mandatory minimum sentence and remanded for th e trial court to resentence Daniel to the ten-year mandatory minimum for possess ion of a firearm under section 775.087(2)(a)(1). Id. In the present case, the information alleged that Lewis attemp ted to murder the victim by shooting at him and that during the commis sion of the offense, he possessed a firearm, and the ju ry found Lewis guilty as charged . As in McKenzie, the information and the jury verdict support the imposition of a ma ndatory minimum of twenty years' imprisonment under section 775.087(2)(a)(2) for d ischarge of a weapon. Accordingly, we reverse and remand with directions for the post conviction court to resentence Lewis to a mandatory minimum of twenty years' impris onment.

Reversed and remanded.

CASANUEVA and WALLA CE, JJ., Concur.