JAMES BROWN, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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James Brown Jr. pleaded guilty to two counts of aggravated battery with a firearm. He appealed a sentence requiring consecutive three-year terms without credit for time served, arguing the mandatory minimum statute did not mandate consecutive sentencing or prohibit credit for time served. The appellate court agreed and remanded for resentencing within the trial judge's discretion.
Section 775.087(2) does not mandate consecutive sentencing for multiple convictions but grants the sentencing judge discretion to impose either concurrent or consecutive minimum three-year terms. Additionally, the mandatory minimum provision does not preclude credit for time served prior to sentence imposition.
[1] A statute mandating a minimum term of imprisonment for a firearm offense does not prohibit concurrent sentencing for multiple counts of that offense.
[2] The use of the word "any" in a sentencing statute indicates judicial discretion regarding consecutive or concurrent terms when a defendant is convicted of multiple counts…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Use of the word 'any' indicates that the sentencing judge is given discretion to sentence a defendant convicted on a multiple count information under the statute to consecutive or concurrent minimum three-year terms.”
Establishes that Section 775.087 grants discretion rather than mandating consecutive sentences
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Join FLexlaw to unlock all legal intelligenceAppellant Brown was charged with two counts of aggravated battery, each involving possession of a pistol. He voluntarily entered a guilty plea to both…
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RYDER, Judge.
Appellant Brown was charged by information with two counts of aggravated battery, each occurring separate from the other. The information alleged further that a pistol was used in the course of each distinct crime.
Appellant voluntarily entered a guilty plea to each charge. The transcript of the plea and sentencing hearing clearly reflects that the trial judge desired to sentence appellant to concurrent three-year terms, but he interpreted Section 775.087, Florida Statutes (1975) as mandating consecutive sentences. The trial judge also opined that the same statute prohibited appellant from receiving credit for time served. Appellant reserved the right to appeal and argues that Section 775.087, Florida Statutes (1975) does not prohibit either concurrent sentencing or the granting of credit for time previously served. We agree.
Section 775.087(2), Florida Statutes (1975) reads in part, “Any person who is convicted of any . . . aggravated battery . who had in his possession a ‘firearm’ . shall be sentenced to a minimum term of imprisonment of three years.” (emphasis added). Had the legislature intended that one convicted of two or more crimes under this statute must be sentenced consecutively, it seems logical that the statute would have been drafted to read, “Any person who is convicted of each . . . aggravated battery . . . Such is not the case with this statute. Use of the word “any” indicates that the sentencing judge is given discretion to sentence a defendant convicted on a multiple count information under the statute to consecutive or concurrent minimum three-year terms. Our interpretation of legislative intent here is supported by the fact that whenever the legislature wishes to require a sentence to be served consecutively, they have affirmatively provided for its imposition. See Section 944.40, Florida Statutes (1975), mandating the sentence of one convicted of escape to run consecutive to any former sentence.
It was error to deny appellant credit for time served. The mandatory minimum sentence provision of Section 775.087, Florida Statutes (1975), does not preclude allowance of credit for time served prior to imposition of sentence. Bacon v. State, 346 So. 2d 629 (Fla.2d DCA 1977); Lingo v. State, 344 So. 2d 629 (Fla.2d DCA 1977).
Appellant’s convictions are affirmed, but we remand this case for resentencing of appellant within the trial judge’s discretion consistent with this opinion. Appellant need not be present for this purpose.
HOBSON, Acting C. J., and DANAHY, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Bacon v. State, 346 So. 2d 629 (Fla. 2d DCA 1977)
- Equibank, N.A. v. S. Perry Penland et ux., 344 So. 2d 629 (Fla. 1st DCA 1977)
- Lingo v. State, 344 So. 2d 629 (Fla. 2d DCA 1977)