WALTER BAILEY
v.
THE STATE OF FLORIDA
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A trial court may vacate an illegal sentence that is shorter than the required mandatory minimum and impose a lawful sentence meeting the statutory minimum without violating double jeopardy protections.
[1] A sentence shorter than a required mandatory minimum sentence is an illegal sentence.
[2] A trial court may vacate an illegal sentence and impose a harsher sentence without violating the defendant's double jeopardy rights.
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Join FLexlaw to unlock all legal intelligence“A trial court may vacate an illegal sentence and impose a harsher sentence without violating the defendant's double jeopardy rights”
State v. Swider principle cited in the opinion
Walter Bailey was convicted of an enumerated felony including attempted murder, during which he discharged a firearm resulting in great bodily harm. T…
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Third District Court of Appeal
State of Florida
Opinion filed December 20, 2023. Not final until disposition of timely filed motion for rehearing.
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No. 3D23-1759 Lower Tribunal No. F06-30750
________________
Walter Bailey,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Marisa Tinkler Mendez, Judge. Walter Bailey, in proper person. Ashley Moody, Attorney General, for appellee. Before LOGUE, C.J., and EMAS and BOKOR, JJ. PER CURIAM. Affirmed. See § 775.087(2)(a)3., Fla. Stat. (2006) (providing that any person convicted of an enumerated felony (including attempted murder) and “during the course of the commission of such felony such person discharged a firearm. . . and, as the result of the discharge, death or great bodily harm was inflicted upon any person, the convicted person shall be sentenced to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison”) (emphasis added); State v. Waldron, 835 So. 2d 1217 (Fla. 5th DCA 2003) (reversing 15-year sentence because jury expressly found defendant used and discharged a firearm during the commission of an aggravated battery, resulting in great bodily harm, and therefore requiring the trial court to impose a 25-year minimum mandatory under the 10/20/Life statute, section 775.087(2)); State v. R.F., 648 So. 2d 293, 294 n.1 (Fla. 3d DCA 1995) (“Where, as here, the trial court imposes a sentence which is shorter than a required mandatory minimum sentence, the sentence is not within the limits prescribed by law and is properly viewed as an ‘illegal’ sentence”); State v. Lopez, 408 So. 2d 744 (Fla. 3d DCA 1982); State v. Scanes, 973 So. 2d 659 (Fla. 3d DCA 2008) (reversing three-year minimum mandatory sentence as illegal and remanding for imposition of statutorily required ten-year minimum mandatory sentence; holding that when a trial court imposes a sentence that is shorter than the required mandatory minimum sentence, the sentence is properly viewed as “illegal”) (additional citations omitted); Allen v. State, 853 So. 2d 533, 534 (Fla. 5th DCA 2003) (affirming trial court's modification of sentence from a three-year minimum mandatory sentence to a ten-year minimum mandatory sentence where sentencing statute required the imposition of a ten-year minimum mandatory sentence, and therefore, three-year minimum mandatory sentence was illegal). See also Kelsey v. State, 206 So. 3d 5, 11 (Fla. 2016) (“In 2012, we clarified that jeopardy attaches only to a legal sentence”) (citing Dunbar v. State, 89 So. 3d 901, 905 (Fla. 2012)); State v. Swider, 799 So. 2d 388, 391 (Fla. 4th DCA 2001) (“A trial court may vacate an illegal sentence and impose a harsher sentence without violating the defendant's double jeopardy rights”); Spatcher v. State, 228 So. 3d 1162, 1164 (Fla. 1st DCA 2017) (“We reject Spatcher's suggestion that the oral-pronouncementcontrols rule applies only when it benefits the defendant. That is tantamount to arguing that the lesser punishment always controls, a rule we have never recognized. The rule that oral pronouncements control operates whether it helps or hurts a defendant.”)
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Farrell v. State (S.D. Fla. 2024)…there is no indication the Legislature intended the statute to undo pre-effective-date immunity hearings, we disapprove [the Second DCA's] decision to order a new immunity hearing in ---PAGE 13--- that case." (cleaned up)); see also Bailey v. State, 333 So. 3d 761, 765 (Fla. 3d DCA 2022) (“In several Love progeny decisions, our sister courts have similarly held that defendants in nonfinal cases are not entitled to new immunity hearings based upon the intervening statutory change.”); Catalano v. State, 298 So.…
Authorities Cited
- Kelsey v. State, 206 So.3d 5 (Fla. 2016)
- Dunbar v. State, 89 So. 3d 901 (Fla. 2012)
- Allen v. State, 853 So. 2d 533 (Fla. 5th DCA 2003)
- State v. Scanes, 973 So. 2d 659 (Fla. 3d DCA 2008)
- State v. Lopez, 408 So. 2d 744 (Fla. 3d DCA 1982)
- Spatcher v. State, 228 So. 3d 1162 (Fla. 1st DCA 2017)
- State v. Waldron, 835 So. 2d 1217 (Fla. 5th DCA 2003)