RICARDO L. WHYMS, APPELLANT,
v.
STATE OF FLORIDA APPELLEE
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Ricardo Whyms appeals the denial of his motion to correct an allegedly illegal sentence, arguing that his mandatory minimum under Florida's 10-20-Life law was invalid because the judge did not orally pronounce it. The court affirmed the denial, finding the claim frivolous and rejecting Whyms' double jeopardy argument.
The court affirmed the denial of the motion, holding that the mandatory minimum was legally imposed as evidenced by the clear record of the plea hearing and sentencing, and that double jeopardy principles do not preclude the sentence as the defendant had no legitimate expectation of finality in an orally pronounced sentence that omitted a mandatory minimum required by law.
[1] A claim that a mandatory minimum sentence was not orally pronounced is factually refuted by the record when the transcript of the plea hearing and sentence clearly shows…
[2] A defendant's claim that a mandatory minimum sentence was not orally pronounced is legally meritless when the record shows the sentence was imposed as provided for in a p…
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Join FLexlaw to unlock all legal intelligence“The record, however, is crystal clear that the judge imposed the sentence as provided for in the plea agreement.”
Establishes that the factual basis of the record contradicted Whyms' claim that the mandatory minimum was not imposed.
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Join FLexlaw to unlock all legal intelligenceIn 2003, Whyms entered a negotiated plea to robbery with a firearm and was sentenced to a ten-year mandatory minimum consecutive to any active sentenc…
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Ricardo L. Whyms appeals an order denying his rule 3.800(a) motion to correct illegal sentence. We affirm but for reasons other than those given by the trial court.
In 2003, Whyms entered a negotiated plea to robbery with a firearm. ■ Pursuant to the terms of the agreement, Whyms was sentenced to a ten-year mandatory minimum under -the 10-20-Life law1 consecutive to ■ any active sentence. In the present motion, Whyms contends that the mandatory minimum is illegal because the judge did not orally pronounce it.
The trial court denied the motion attaching the State’s response, which argiied thát the motion repeated a claim that was denied in a prior motion and affirmed oh appeal by this Court in Whyms v. State, 158 So.3d 600 (Fla. 4th DCA 2015) (4D14-3888) (table). The prior motion attached by the" State, however, did not raise the *588present claim regarding the mandatory minimum sentence. The claim was not shown to be barred by the doctrine of collateral estoppel. State v. McBride, 848 So.2d 287, 291 (Fla.2003).
We nevertheless affirm because Whyms’ claim is frivolous. The transcript of the plea hearing and- sentence are in the record and make absolutely .clear that the court imposed the agreed-upon ten-year mandatory minimum sentence. Whyms contends that the mandatory minimum was not orally pronounced because the judge did not expressly say so at the precise moment the judge announced the sentence. The record, however, is crystal clear that the judge imposed the sentence as provided. for in the plea agreement.
In addition to being factually refuted by the record, the claim lacks merit as a matter of law. Whyms cites to Ashley, v. State, 850 So.2d 1265, 1267 (Fla.2003), which stands for the proposition that “[o]nce a sentence has been imposed and the person begins to serve' the sentence, that sentence may not be increased without running afoul of double jeopardy principles.” Ashley is inapplicable under the circumstances.
In Dunbar v. State, 89 So.3d 901 (Fla. 2012), the trial court failed to orally pronounce a mandatory minimum required by law. Later that day, the court added the mandatory minimum to the written sentence. at 903. The Florida Supreme Court rejected the notion that double jeopardy precluded addition of the mandatory minimum because, in these circumstances, the defendant had no legitimate expectation of finality in the orally pronounced sentence. Id. at 906. The same rationale applies here.
Whyms filed this motion twelve years after his negotiated, plea.; Our records show that Whyms has fled other meritless postconviction motions and appeals. We caution Whyms. that frivolous postconviction filing will not be tolerated and may result in sanctions and referral to- prison officials. See State v. Spencer, 751 So.2d 47 (Fla.1999); see also § 944.279(1), Fla. Stat. (2015).
Affirmed. Appellant warned against frivolous filing.
WARNER, STEVENSON and KLINGENSMITH, JJ., concur.
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Citator
Cited By
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McCORMICK v. State, 186 So. 3d 1111 (Fla. 4th DCA 2016)…k admits the trial court orally found him to be an HVFO and sentenced him to life imprisonment, but claims the fifteen-year mandatory minimum term is illegal because the court did not orally pronounce it. This claim is frivolous. See Whyms v. State, 186 So. 3d 587 (Fla. 4th DCA 2016). The sentencing transcript attached to the order on appeal reflects that the trial court orally declared McCormick to be an HVFO and sentenced him to life imprisonment. Immediately thereafter, the court asked the prosecutor whet…
Authorities Cited
- State v. Spencer, 751 So. 2d 47 (Fla. 1999)
- State v. Antoine L. McBRIDE, 848 So. 2d 287 (Fla. 2003)
- Columbus Rickey Ashley v. State, 850 So. 2d 1265 (Fla. 2003)
- Dunbar v. State, 89 So. 3d 901 (Fla. 2012)