OSVALDO PALMER, ENRIQUE ACOSTA, JORGE MILAN AND RAMONA FERNANDEZ, APPELLANTS,
v.
THE STATE OF FLORIDA, APPELLEE
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Four defendants appealed their convictions for drug trafficking, armed robbery, and firearm possession offenses resulting from a sting operation. The court affirmed all convictions and most sentences but reversed the stacking of consecutive minimum mandatory sentences because gain time credits were available for one mandatory minimum but not the other.
The court affirmed all convictions and found that stacking of minimum mandatory sentences for multiple offenses is permissible. However, the court reversed the order of consecutive sentences because gain time credits are available for minimum mandatory time under the trafficking statute but not under the firearm possession statute, requiring remand for correction.
[1] Minimum mandatory terms imposed for separate offenses may not be stacked consecutively when gain time is available for one offense but not the other.
[2] A defendant convicted of multiple offenses may be sentenced to consecutive minimum mandatory terms for each offense.
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Join FLexlaw to unlock all legal intelligence“We find no error in the stacking, because of the multiple offenses.”
Establishes that consecutive minimum mandatory sentences for multiple offenses are permissible under Florida law.
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Join FLexlaw to unlock all legal intelligenceAppellants Palmer, Acosta, Milan, and Fernandez were convicted following a sting operation by undercover Homestead police agents involving a drug ripo…
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PER CURIAM.
The appellants, Palmer, Acosta and Milan, by consolidated appeal, appeal their convictions for armed conspiracy to traffic in cannabis, robbery with a firearm and possession of a firearm during the commission of a felony. The appellant Fernandez appeals her conviction of conspiracy to traffic in cannabis.
These convictions were the result of a sting operation by the undercover agents of the City of Homestead and a drug ripoff of the contraband by the defendants. Upon conviction the defendants were sentenced as follows: defendants, Acosta, Milan and Palmer were sentenced to concurrent twelve year terms of imprisonment for the conspiracy and trafficking counts, each with a three year minimum mandatory, and for the robbery counts they were sentenced to twelve years concurrent imprisonment, with a three year minimum mandatory to be served consecutive to the conspiracy and trafficking minimum mandatory terms. Defendant, Fernandez was sentenced to a term of imprisonment of eight years, with a minimum mandatory of three years for her conviction on the conspiracy charge.
We find no error in any of the points urged for appeal save and except the stacking of the consecutive minimum mandatory terms. Fonseca v. State, 547 So. 2d 1032 (Fla. 3d DCA 1989); Montoya v. State, 489 So. 2d 794 (Fla. 3d DCA 1986); Wright v. State, 487 So. 2d 1176 (Fla. 1st DCA 1986); Jimenez v. State, 480 So. 2d 705 (Fla. 3d DCA 1985); Wiggins v. State, 460 So. 2d 483 (Fla. 1st DCA 1984); Orantas v. State, 452 So. 2d 68 (Fla.1984).
As to the stacking of the minimum mandatories, the way the sentences are worded the defendants, as sentenced, must first serve a minimum mandatory three years under the trafficking statute, Section 893.135(1), Florida Statutes (1990), and then a three year minimum mandatory for possession of a firearm pursuant to the provision of Section 775.087(2), Florida Statutes (1990).
We find no error in the stacking, because of the multiple offenses. Palmer v. State, 438 So. 2d 1, 4 (Fla.1983); Vann v. State, 366 So. 2d 1241 (Fla. 3d DCA 1979).
However, because gain time is available as to minimum mandatory time given under Section 893.135(1), Florida Statutes (1990), and not available as to minimum mandatory time given under Section 775.087(2), Florida Statutes (1990) we believe the order of consecutive sentences is error and therefore set aside the order of consecutive sentences and return the matter to the trial court for correction of sentences in accordance with this opinion. In all other respects the verdicts, adjudications, and sentences, are affirmed.
Affirmed in part, reversed in part, with directions.
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Ricardo v. State, 608 So. 2d 93 (Fla. 2d DCA 1992)…release date to which he is entitled. He argues that he should be able to serve his most severe sentences, for the four ten-year habitual-ized offenses, first, and then serve his less severe, guidelines sentences last. We agree. In Palmer V. State, 571 So. 2d 567 (Fla. 3d DCA 1990), the Third District found that when stacking minimum mandatory sentences, the sentences should be ordered so that the sentence that does not allow for gain time is served first and the sentence that does allow for gain time is ser…
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Daniels v. State, 664 So. 2d 366 (Fla. 3d DCA 1996)…ee years to be served consecutively to a seven year sentence with no minimum mandatory portion. The state concedes that the sentence with the minimum mandatory provision should have been ordered to be served first in accordance with Palmer v. State, 571 So. 2d 567 (Fla. 3d DCA 1990). See also Pioquinto v. State, 656 So. 2d 552 (Fla. 2d DCA 1995); Ricardo v. State, 608 So. 2d 93 (Fla. 2d DCA 1992). Therefore, we reverse and remand with directions to resentenee the defendant so that the mandatory sentence is…
Authorities Cited
- Dean v. Publix Supermarkets, Inc., 438 So. 2d 1 (Fla. 1983)
- Wright v. State, 487 So. 2d 1176 (Fla. 1st DCA 1986)
- Orantes v. State, 452 So. 2d 68 (Fla. 1st DCA 1984)
- Jimenez v. State, 480 So. 2d 705 (Fla. 3d DCA 1985)
- L.S. v. State, 547 So. 2d 1032 (Fla. 3d DCA 1989)
- Vann v. State, 366 So. 2d 1241 (Fla. 3d DCA 1979)
- Rigoberto Montoya v. State, 489 So. 2d 794 (Fla. 3d DCA 1986)
- Wiggins v. State, 460 So. 2d 483 (Fla. 1st DCA 1984)