MICHAEL WITHERSPOON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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PER CURIAM.
The defendant, Michael Witherspoon, appeals from the denial of his motion to correct illegal sentence pursuant to Rule 3.800(a), Florida Rules of Criminal Procedure, alleging that the imposition of consecutive three year minimum mandatory sentences for his two attempted first degree murder convictions was illegal. We reverse based on the State’s proper confession of error. See Ward v. State, 630 So. 2d 217 (Fla. 3d DCA 1993)(“It is error to impose consecutive mandatory minimum sentences for the use of a firearm during a single criminal episode, even where there are two victims, where the episode occurred without interruption in time and location.” (quoting Weatherspoon v. State, 624 So. 2d 405, 407 (Fla. 2d DCA 1993))). On remand, the trial court is directed to correct the sentences so that the mandatory minimum sentences will be served concurrently to the attempted first degree murder sentences. See Palmer v. State, 438 So. 2d 1, 4 (Fla.1983). The defendant need not be present for such resentencing.
Reversed and remanded for resentencing with directions.
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Perreault v. State, 853 So. 2d 604 (Fla. 5th DCA 2003)…ncino, 714 So. 2d 429 (Fla.1998), the supreme court clarified that the term “illegal sentence” as used in Florida Rule of Criminal Procedure 3.800(a) was not limited to only those sentences that exceed the statutory maximum. In Witherspoon v. State, 833 So. 2d 790 (Fla. 3d DCA 2002), the Third District Court of Appeal reversed an order denying a Rule 3.800(a) motion where the state conceded that it was error for the trial court to impose consecutive minimum mandatory sentences for firearm offenses where the o…
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Goree v. State, 911 So. 2d 129 (Fla. 3d DCA 2005)…wo firearm mandatory minimum terms where defendant shot woman and shot at, but missed, her son.” Id. at 891 n. 4. Thus, stacking of mandatory minimum sentences was permissible. The defendant relies on this court’s decision in Witherspoon v. State, 833 So. 2d 790 (Fla. 3d DCA 2002), but the facts of that case are not stated. The Christian decision spells out when stacking is, and is not, permitted. The defendant also relies on this court’s decision in Ward v. State, 630 So. 2d 217 (Fla. 3d DCA 1993). There…
Authorities Cited
- Dean v. Publix Supermarkets, Inc., 438 So. 2d 1 (Fla. 1983)
- Brown v. State, 624 So. 2d 405 (Fla. 2d DCA 1993)
- Ward v. State, 630 So. 2d 217 (Fla. 3d DCA 1993)
- Kohn v. City OF Miami, 630 So. 2d 217 (Fla. 3d DCA 1993)