JAMES CHERRY, III
v.
STATE OF FLORIDA
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James Cherry appeals the denial of his motion to vacate a life sentence with 25-year minimum mandatory for second-degree murder, claiming the sentence was illegally enhanced without a jury finding under Erlinger v. United States. The appellate court affirmed the denial, finding the jury verdict included the required firearm enhancement finding and that Erlinger does not apply retroactively to final sentences.
The sentence is not illegal because the jury verdict conclusively shows the jury found that Cherry discharged a firearm causing great bodily harm or death. Additionally, Erlinger does not apply retroactively to sentences that were already final when Erlinger was decided.
[1] A post-conviction claim challenging an illegal sentence may be brought outside the two-year limitation if the sentence imposed either exceeded the maximum or fell below t…
[2] A jury finding that a defendant discharged a firearm causing great bodily harm or death supports the imposition of a minimum mandatory sentence enhancement.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“The sentence imposed was illegal because it either exceeded the maximum or fell below the minimum authorized by statute for the criminal offense at issue.”
Establishes the exception to the two-year limitation period for post-conviction sentence challenges under section 924.051(6)(c)
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Join FLexlaw to unlock all legal intelligenceCherry was convicted of second-degree murder and sentenced to life with a 25-year minimum mandatory provision. The jury verdict included a finding tha…
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Third District Court of Appeal
State of Florida
Opinion filed August 27, 2025.
Not final until disposition of timely filed motion for rehearing.
No. 3D25-0537
Lower Tribunal No. F07-43686
James Cherry, III,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Carlos H. Gamez, Judge.
James Cherry, III, in proper person.
James Uthmeier, Attorney General, for appellee.
Before EMAS, LOBREE and BOKOR, JJ.
PER CURIAM.
James Cherry, III, appeals from the denial of his motion to vacate, set
aside, or correct sentence, wherein he contended that his life sentence with a twenty-five year minimum mandatory provision for second degree murder was illegally enhanced pursuant to section 775.087(2), Florida Statutes (2007), without a jury finding as required by Erlinger v. United States, 602 U.S. 821 (2024). The trial court denied the motion as time barred, having been filed after the two-year window provided in Florida Rule of Criminal Procedure 3.850(b). However, a post-conviction claim can be brought outside the two-year limitation if “[t]he sentence imposed was illegal because it either exceeded the maximum or fell below the minimum authorized by statute for the criminal offense at issue." § 924.051(6)(c), Fla. Stat. (2024). Nonetheless, we affirm the order on review as the record conclusively refutes Cherry's claim, because the jury verdict includes its finding that Cherry "discharged a firearm causing great bodily harm or death.” Moreover, the United States Supreme Court's decision in Erlinger does not apply retroactively to a sentence that was already final at the time Erlinger issued. See Wainwright v. State, 411 So. 3d 392, 399–401 (Fla. 2025); see also Arias v. State, 50 Fla. L. Weekly D1341 (Fla. 3d DCA June 18, 2025).
Affirmed.
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