Gallimore v. State

• Decision Date: 21 November 2012
• Docket Number: No. 4D11–231.,4D11–231.
• Citation: 100 So.3d 1264
• Court: Florida District Court of Appeals
• Parties: Donnie GALLIMORE, Appellant, v. STATE of Florida, Appellee.

100 So.3d 1264

Donnie GALLIMORE, Appellant,
v.
STATE of Florida, Appellee.

No. 4D11–231.

District Court of Appeal of Florida,
Fourth District.

Nov. 21, 2012.

[100 So.3d 1265]

Bernard F. Daley, Jr. of The Daley Law Office, P.A., Tallahassee, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.

GERBER, J.

The defendant appeals the circuit court's denial of his Florida Rule of Criminal Procedure 3.800(b)(2) (2011) motion to correct sentencing error on his convictions for robbery while in actual possession of a firearm. He argues the court erred in finding that the 10–20–Life statute's ten-year minimum mandatory provision ¹ precluded consideration of a youthful offender sentence. We agree with the defendant's argument. Therefore, we reverse on that argument and remand for resentencing.²

The state charged the defendant in two cases with, collectively, seven counts of robbery while in actual possession of a firearm and one count of armed burglary. The defendant ultimately entered an open no contest plea and filed a motion to be sentenced as a youthful offender pursuant to section 958.04(1), Florida Statutes (2008).³

At the sentencing hearing, the court read aloud the presentence investigation

[100 So.3d 1266]

report (PSI), which stated: “It is the opinion of this officer that the defendant be sentenced to a period of incarceration in the Department of Corrections as a youthful offender.” After reading aloud the PSI, the court had the following exchange with defense counsel:

COURT: [The investigator] makes these recommendations [for the defendant]; two years Florida State Prison followed by supervision, I mean, that's not even a legal sentence. It's a ten year minimum mandatory.

[DEFENSE]: But as a [youthful offender].

COURT: [ Youthful offender ] you don't go to ... state prison.

(emphasis added).

Shortly thereafter, the court denied the defendant's motion for youthful offender sentence. The court sentenced the defendant to the guidelines minimum of 25.35 years in prison on all counts to run concurrently, with a ten-year minimum mandatory term on the counts for robbery while in actual possession of a firearm pursuant to the 10–20–Life statute. In pronouncing the sentence, the court stated:

Bottom of the guidelines. That's all the discretion that I have to do. I denied the youthful offender sentence, so it should be clear on the record if there's any problem with that.

(emphasis added).

The defendant later filed his Florida Rule of Criminal Procedure 3.800(b)(2) motion to correct sentencing error. In the motion, the defendant argued the court erred in finding that he was not eligible for a youthful offender sentence due to the ten-year minimum mandatory term on the counts for robbery while in actual possession of a firearm pursuant to the 10–20–Life statute. A successor judge denied the motion.

This appeal followed. The defendant argues the circuit judges erred in finding that the 10–20–Life statute's minimum mandatory provision precluded consideration of a youthful offender sentence. Our review of this argument is de novo. See State v. Flynn, 95 So.3d 436, 437 (Fla. 4th DCA 2012) (“Because a motion to correct a sentencing error involves a pure issue of law, our standard of review is de novo.”) (citation omitted); cf. Goldwire v. State, 73 So.3d 844, 845–46 (Fla. 4th DCA 2011) (de novo is...