Bonner v. State

• Decision Date: 05 April 2018
• Docket Number: No. 1D15–5582,1D15–5582
• Citation: 242 So.3d 501
• Parties: Toland Jerome BONNER, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

242 So.3d 501

Toland Jerome BONNER, Appellant,
v.
STATE of Florida, Appellee.

No. 1D15–5582

District Court of Appeal of Florida, First District.

April 5, 2018

Andy Thomas, Public Defender, and Mark Graham Hanson, Assistant Public Defender, for Appellant.

Pamela Jo Bondi, Attorney General, and Samuel Steinberg, Assistant Attorney General, for Appellee.

Per Curiam.

242 So.3d 503

Appellant Toland J. Bonner raises three issues in this criminal appeal. First, he contends that it was error under Williams v. State , 186 So.3d 989 (Fla. 2016), and Gartman v. State , 197 So.3d 1181 (Fla. 1st DCA 2016), for his sentences for robbery with a firearm (Count 1) and attempted robbery with a firearm (Counts 2 through 6), to be imposed consecutively to each other under section 775.087(2)(d), Florida Statutes (2015), the "10–20–Life" statute, because the crimes arose from a single criminal episode and the firearm was not discharged. Second, he contends that the trial court erred by including a mandatory minimum term in his sentence for aggravated battery while actually possessing a firearm (Count 8), because the mandatory minimum term was not orally pronounced at the sentencing hearing. Third, he contends that the judgment and sentence erroneously labeled the convictions for attempted robbery with a firearm (Counts 2 through 6) as first-degree felonies. For the reasons set forth below, we vacate the sentences and remand for resentencing and to correct a scrivener’s error.

I.

On January 6, 2015, six friends gathered for a birthday dinner at Los Rancheros Mexican Restaurant in Pensacola. After dinner, the friends were hanging out in the parking lot when Bonner approached them with a firearm and demanded money. Bonner moved towards the first victim and pointed the firearm directly at him, within inches from his head, and demanded money. Once Bonner realized the victim did not have any money, he moved on. He walked up to each victim and pointed the firearm directly at each one, except he pointed the firearm generally into a truck where two victims were sitting. One victim threw cash on the ground, and another victim was struck with the firearm. At no point was the firearm discharged.

The jury found Bonner guilty of the armed robbery, attempted armed robbery, and aggravated battery. For each of these counts, the jury found that Bonner actually possessed a firearm. The jury also found Bonner guilty of fleeing or attempting to elude a law enforcement officer and resisting arrest without violence.

The trial court sentenced Bonner to twenty years for the armed robbery and ten years for each conviction of attempted armed robbery, all to run consecutively. The trial court also imposed a consecutive sentence of ten years for the aggravated battery. The court did not mention a mandatory minimum term for this count during the hearing. The trial court imposed a sentence of five years for fleeing or attempting to elude a law enforcement officer and one year for resisting arrest without violence, to run concurrently with the sentence of ten years for the aggravated battery.

While this appeal was pending, and before Bonner filed a brief, he filed a rule 3.800(b)(2) motion to correct two sentencing errors. The first error alleged was the imposition of consecutive mandatory minimum sentences of ten years for the armed robbery and attempted armed robbery convictions. He argued that imposing these mandatory minimum sentences as consecutive to each other was impermissible because the offenses in this case arose from or were part of a single criminal episode, and no evidence showed—and the jury did not find—that any firearm was discharged in the course of any of those crimes. The second error alleged was that the sentence for aggravated battery with a firearm included a mandatory minimum term of ten years, pursuant to section 775.087(2), but the trial court did not orally impose any mandatory minimum term as part of that

242 So.3d 504

sentence. The trial court denied the motion.

II.

The first issue is whether the consecutive sentences for multiple firearm offenses are proper. In Williams , the Florida Supreme Court held that "consecutive sentencing of mandatory minimum imprisonment terms for multiple firearm offenses is impermissible if the offenses arose from the same criminal episode and a firearm was merely possessed but not discharged." 186 So.3d at 993 ; accord Walton v. State , 208 So.3d 60, 64 (Fla. 2016) ( Walton II ), quashing Walton v. State , 106 So.3d 522 (Fla. 1st DCA 2013) ( Walton I ). The supreme court further held that "[i]f ... multiple firearm offenses are committed contemporaneously, during which time multiple victims are shot at, then consecutive sentencing is permissible but not mandatory." Williams , 186 So.3d at 993.

Here, there is no dispute that Bonner did not discharge the firearm. This Court and other district courts have consistently reversed and remanded cases for resentencing where trial courts have sentenced defendants to consecutive terms for multiple firearms offenses even when a firearm was not discharged.¹

But this appeal is slightly different because it turns on whether Bonner’s actions constituted a single criminal episode, i.e., whether the multiple firearm offenses were committed contemporaneously. The State relies on a series of cases to establish distinct acts but they are distinguishable because each involved discharging a firearm.² In contrast, where a defendant does not fire a firearm, stacking consecutive sentences has generally not...