JAMES HOWARD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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James Howard appealed the denial of his motion to correct an illegal sentence under Florida Rule of Criminal Procedure 3.800(a). The court affirmed most claims but reversed and remanded the denial of ground two regarding the consecutive minimum mandatory sentences imposed for attempted armed robbery and armed robbery, finding they were improperly imposed consecutive rather than concurrent when the crimes occurred during a single criminal episode.
The court held that imposing consecutive minimum mandatory sentences under section 775.087(2) is improper where offenses occurred during a single criminal episode, unless the defendant discharged the firearm and injured multiple victims or caused multiple injuries to one victim. Because Howard's crimes occurred during a single episode and he fired once causing one injury, the consecutive minimum mandatory sentences were illegal.
[1] Consecutive minimum mandatory sentences under section 775.087(2), Florida Statutes, are improper when offenses occur during a single criminal episode, unless the defendan…
[2] A trial court may resentence a defendant to concurrent minimum mandatory sentences without requiring the defendant's presence if the change does not affect the overall te…
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Join FLexlaw to unlock all legal intelligence“The imposition of consecutive minimum mandatory sentences under section 775.087(2) is improper where the offenses occurred during a single criminal episode, unless the defendant discharged the firearm and injured multiple victims or caused multiple injuries to one victim.”
Establishes the legal standard for when consecutive minimum mandatory sentences are permissible
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Join FLexlaw to unlock all legal intelligenceHoward was convicted of first-degree murder, attempted armed robbery, and armed robbery. He was sentenced to life imprisonment for murder with a 25-ye…
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The appellant appeals the denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm the denial of all but one of the appellant’s claims. For the reasons discussed below, we reverse and remand the denial of ground two for further proceedings.
The appellant was convicted of first-degree murder (count one), attempted armed robbery (count two) and armed robbery (count three). He was sentenced to life imprisonment for the murder (count one), with a 25-year minimum mandatory. For the attempted robbery (count two) he was sentenced to 15 years’ imprisonment with a 3-year minimum mandatory imposed pursuant to section 775.087(2), Florida Statutes (1990), for possessing a firearm during the commission of the felony. For the armed robbery (count three) he was sentenced to life imprisonment with a 3-year minimum mandatory pursuant to section 775.087(2). All the sentences were imposed consecutively to each other, with the exception of the minimum mandatory sentences for counts two and three, which were imposed concurrently with each other, but consecutively to the 25-year minimum mandatory imposed for count one. In response to this motion, the trial court restructured the minimum mandatory portions of appellant’s sentences so the 25 and 3-year minimum mandatories for counts one and two are concurrent to each other, but consecutive to the 3-year minimum mandatory imposed for count three. Thus, the minimum mandatory for count three is now running consecutively to the minimum mandatories imposed for counts one and two. The appellant asserts on appeal that the trial court erred by not imposing the minimum mandatory for count three concurrently to the minimum mandatory for count two because both crimes occurred during a single criminal episode.
The imposition of consecutive minimum mandatory sentences under section 775.087(2) is improper where the offenses occurred during a single criminal episode, unless the defendant discharged the firearm and injured multiple victims or caused multiple injuries to one victim. See Valentin v. State, 963 So.2d 317, 320 (Fla. 5th DCA 2007). Here, the appellant alleges that his consecutive minimum mandatory sentences for counts two and three are improper because he only fired the weapon once, therefore causing only one injury to one victim. Further, the trial court conceded in its order that the crimes occurred during a single criminal episode. Thus, we reverse and remand for the trial court to attach portions of the record indicating the appellant discharged the firearm and injured multiple victims or caused multiple injuries to one victim, or to resentence the appellant to concurrent minimum mandatory sentences for all counts. If the trial *137court resentences the appellant, his presence is not required as he will still be serving a non-parole-eligible life sentence for robbery. See Valentin, 968 So.2d at 320-21 (defendant not entitled to be present at resentencing where minimum mandatory sentences would be imposed concurrently instead of consecutively, where term of incarceration he must serve is not affected).
AFFIRMED in part, REVERSED and REMANDED in part for further proceedings consistent with this opinion.
WOLF, VAN NORTWICK, and LEWIS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Wanless v. State, 271 So. 3d 1219 (Fla. 1st DCA 2019)…ots); Tate v. State, 194 So. 3d 564, 565 (Fla. 1st DCA 2016) (consecutive mandatory-minimum sentences permissible for second-degree murder and felon-inpossession convictions in one criminal episode; no mention of multiple gunshots); Howard v. State, 100 So. 3d 136 (Fla. 1st DCA 2012) (explaining, pre-Williams, that “[t]he imposition of consecutive minimum mandatory sentences under section 775.087(2) is improper where the offenses occurred during a single criminal episode, unless the defendant discharged the f…
Authorities Cited
- Siplen v. State, 963 So. 2d 317 (Fla. 5th DCA 2007)
- Valentin v. State, 963 So. 2d 317 (Fla. 5th DCA 2007)