HARUTYUN ARUTYUNYAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Harutyun Arutyunyan was convicted of attempted first-degree murder of a law enforcement officer, shooting into an occupied building, and grand theft with a firearm. The Florida Fourth District Court of Appeal affirmed his convictions but reversed his sentence, finding that the trial court erred in applying the 10/20/Life statute's mandatory consecutive sentencing requirement to offenses tried in a single prosecution.
The court held that the 10/20/Life statute's requirement that a mandatory minimum run consecutively to 'any other felony offense' applies only to separate crimes tried in separate prosecutions, not to multiple felonies tried within a single prosecution. Therefore, the trial court had discretion to order the mandatory minimum concurrent with or consecutive to the other sentences.
[1] A mandatory minimum sentence imposed under the 10/20/Life statute must run consecutively to sentences for other felony offenses tried within a single prosecution.
[2] The directive for consecutive sentencing under the 10/20/Life statute applies only to separate crimes, not those involved in a single prosecution.
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Join FLexlaw to unlock all legal intelligence“the reference to 'any other' felony refers ... only to another separate crime, rather than those involved in a single prosecution”
Establishes the key interpretation of 'any other felony offense' in the 10/20/Life statute, limiting consecutive sentencing requirements to separate prosecutions
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Join FLexlaw to unlock all legal intelligenceArutyunyan discharged a firearm in committing an attempted murder of Officer John Cnrry. He was convicted of three felonies: attempted first-degree mu…
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STEVENSON, J.
Harutyun Arutyunyan, the appellant, was convicted of attempted first degree murder, with a firearm, of a law enforcement officer (count I), shooting into an occupied building (count II), and grand theft with a firearm (count III). Ultimately, appellant was sentenced to life with a twenty-year mandatory minimum for count I and to fifteen years each for counts II and III. The mandatory minimum imposed for count I was ordered to run consecutive to the sentences imposed for counts II and III. In this appeal, Arutyunyan contests both his convictions and his sentence. We affirm the convictions,1 but find merit in appellant’s challenge to his sentence.
Arutyunyan discharged a firearm in the commission of the attempted murder of Officer John Cnrry.
Consequently, pursuant to the 10/20Aife statute, section 775.087(2)(a)2., Florida Statutes (2002), the trial court was required to impose a twenty-year mandatory minimum sentence. The issue that arose at the sentencing hearing, however, was whether the court had discretion to order that this mandatory minimum run consecutive to or concurrent with the sentences imposed for counts II and III. The State convinced the court that the statute required, that the mandatory minimum run consecutive to the sentences for counts II and III.
However, the State’s position was in error. Subsection (2)(d) of the 10/20Aife statute states that “[t]he court shall impose any term of imprisonment provided for in this subsection consecutively to any other term of imprisonment imposed for any other felony offense.” § 775.087(2)(d). The words “any other felony offense” have been ascribed a specific meaning: “the reference to ‘any other’ felony refers ... only to another separate crime, rather than those involved in a single prosecution.” Mondesir v. State, 814 So. 2d 1172, 1173 (Fla. 3d DCA 2002)(emphasis in original); see also Stafford v. State, 818 So. 2d 693, 694-95 (Fla. 5th DCA 2002)(expressly adopting the reasoning on this issue set forth in Mondesir). Arutyunyan was being sentenced for felonies tried within a single prosecution.
Thus, section 775.087(2)(d)’s directive regarding consecutive sentencing has no application, leaving the court free to choose whether the mandatory minimum sentence should run consecutive to or concurrent with the sentences imposed for counts II and III. Since the trial court was expressly operating under the belief that section 775.087(2)(d) required consecutive sentencing, we reverse the sentence imposed and remand to allow the judge the opportunity to consider the option of concurrent sentencing. The court is free, however, to again order that the minimum mandatory be served consecutive to the sentences imposed for counts II and III.
AFFIRMED in part; REVERSED in part; and REMANDED.
WARNER and GROSS, JJ., concur. . Among the issues raised by appellant is a claim that his counsel conceded his guilt to counts II and III, without his consent, amounting to ineffective assistance of counsel per se. This claim is not cognizable on direct appeal as the ineffective assistance is not apparent from the face of the record. See, e.g., Barrientos v. State, 825 So. 2d 1065, 1067 (Fla. 4th DCA 2002), review denied, 845 So. 2d 887 (Fla.2003). Our affirmance of this claim, however, is without prejudice to appellant's right to seek postconviction relief.
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Keona Murray v. State, 890 So. 2d 451 (Fla. 2d DCA 2004)…868 So. 2d at 539; see also Elozar v. State, 872 So. 2d 934 (Fla. 5th DCA 2004). Accordingly, Murray could not be subjected to consecutive sentences under section 775.087 for any offense that arose from a single episode. But see Arutyunyan v. State, 863 So. 2d 410, 412 (Fla. 4th DCA 2003) (holding that where defendant “was being sentenced for felonies tried within a single prosecution” under section 775.087, the trial court was “free to choose” whether to run sentences consecutively or concurrently). “In ord…
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Williams v. State, 125 So. 3d 879 (Fla. 4th DCA 2013)…such sentences are required. Our certified question now presents the latter issue to the supreme court. The defendant also argues that such an interpretation of section 775.087(2)(d)’s last clause conflicts with our holding in Arutyunyan v. State, 863 So. 2d 410 (Fla. 4th DCA 2003). There, we faced the same issue as in this case, that is, whether consecutive sentences are required for offenses falling under section 775.087(2)’s mandatory minimum provisions and occurring during the same criminal episode. Id.…
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James v. State, 868 So. 2d 1242 (Fla. 4th DCA 2004)…ive regarding consecutive sentences would have had no application to this case, and the court would have been free to run count IV concurrently or consecutively to any of the other counts involved in this single prosecution. See Arutyunyan v. State, 863 So. 2d 410 (Fla. 4th DCA 2003); Mondesir v. State, 814 So. 2d 1172 (Fla. 3d DCA 2002). We need not decide if the current sentence violates the restrictions of Pearce since on remand the trial judge will need to make a new determination as to whether to run co…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Philome Mondesir v. State, 814 So. 2d 1172 (Fla. 3d DCA 2002)
- Ira Stafford v. State, 818 So. 2d 693 (Fla. 5th DCA 2002)
- Eliezer Barrientos v. State, 825 So. 2d 1065 (Fla. 4th DCA 2002)