Kelly v. State

Decision Date05 May 2014
Docket NumberNo. 1D12–4795.,1D12–4795.
Citation137 So.3d 2
PartiesMarlon Faron KELLY, Appellant, v. STATE of Florida, Appellee.
CourtFlorida District Court of Appeals


Nancy A. Daniels, Public Defender, M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.


Appellant raises two issues on appeal. He contends that the trial court committed reversible error during resentencing by imposing a mandatory minimum sentence that exceeded the court's original mandatory minimum sentence. Appellant also argues the trial court erred by admitting into evidence certain photographic evidence. We affirm this second issue without further comment. For the reasons explained below, we reverse the trial court's sentence imposed on resentencing.

Factual Background

Appellant was convicted of two counts of aggravated battery, one count of aggravated assault (all charged as first-degree felonies), and one count of possession of a firearm by a convicted felon. The jury specifically found: Appellant discharged a firearm, causing great bodily harm to the victims of the aggravated batteries; Appellant discharged a firearm in the course of the aggravated assault; and possession of a firearm by a convicted felon. Appellant was sentenced to 40 years' imprisonment as to each of the aggravated battery charges, both to run concurrently. Pursuant to section 775.087(2)(a), Florida Statutes (the “10–20–Life statute), the trial court imposed the 25–year minimum sentence provided by that law. The court also sentenced Appellant to 20 years' imprisonment on the aggravated assault conviction, to run concurrently with the other sentences, which was also a mandatory minimum based on 10–20–Life.

Appellant subsequently filed a Florida Rule of Criminal Procedure 3.800(b)(2) motion alleging that his sentence was illegal. Appellant argued that the phrasing used in the verdict form pertained to the special finding that a firearm was used in the commission of the crime; thus, the use of a firearm was made an element of the offense of aggravated battery, and therefore, the aggravated battery charges were second-degree, not first-degree felonies, carrying a maximum 15–year sentence, rather than the 30–year maximum applicable to first-degree aggravated battery. Appellant also contended that, because the court expressly pronounced at the sentencing hearing that the mandatory minimum would be 25 years, it could not exceed that 25–year sentence when imposing the mandatory minimum for a second-degree felony. Appellant further argued that, pursuant to Mendenhall v. State, 48 So.3d 740 (Fla.2010), the maximum penalty the court could impose was 25 years, because the batteries were second-degree felonies, yet the court specifically imposed a 25–year mandatory minimum for use of the firearm.

The trial court issued a show cause order, to which the State responded by arguing the sentence was legal pursuant to section 775.087(2)(a) 3., Florida Statutes, which provides that “regardless of whether the use of a weapon is an element of a felony,” and during the course of committing a felony the defendant discharged a firearm resulting in death or great bodily harm, the convicted felon “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.”

The trial court issued an order granting Appellant's motion with respect to the issue of reducing the felonies from first to second degree. Addressing Appellant's claim that his 40–year sentence was illegal, and that any sentence above the 25–year mandatory minimum was also illegal, the trial court found:

In Mendenhall v. State, 48 So.3d 740 (Fla.2010), the Florida Supreme Court held that under the '10–20–Life' statute, a defendant could be sentenced to a mandatory minimum sentence of 25 years to life irrespective of the statutory maximum for the offense. However, Mendenhall did not specifically authorize a sentence above the statutory maximum beyond the mandatory minimum sentence.

(Citation omitted; emphasis in original.) The trial court then cited the Fourth District's recent opinion in Wiley v. State, 125 So.3d 235 (Fla. 4th DCA 2013), and found:

because counts one and two should be second-degree felonies, a 40–year sentence is not authorized by law. Therefore, Defendant should be resentenced to a legal sentence that will effectuate the intent of the Court. See Bernal v. State, 76 So.3d 1112 (Fla. 1st DCA 2011) (a Court may restructure a sentence on the counts challenged by a defendant as long as the overall term of the sentence is the same). The Court's original intent was for Defendant to serve the 25–year mandatory minimum sentence followed by 15 years in prison, during which he would be eligible for gain time awards. Pursuant to section 944.275, Florida Statutes, a defendant must serve at least 85% of his sentence regardless of the amount of gain time accrued. Accordingly, under the original 40–year sentence, if Defendant were to accrue the maximum gain time award available, he would have to serve 12.75 years after completing the 25–year mandatory minimum. Therefore, in order to impose a sentence clearly authorized by Mendenhall without increasing the overall term of incarceration, it appears that a mandatory minimum sentence of 37.75 years would be permissible at resentencing and would effectuate the Court's intent. However, both parties should be prepared to argue the permissible sentencing range at resentencing.

(Emphasis in original.)

After a resentencing hearing, the trial court imposed its new sentence comporting with the sentence discussed in this order, and this appeal followed.


The trial court's new sentence involves two issues: First, whether it erred by imposing a greater mandatory minimum sentence than its previous sentence included; and second, whether it was incorrect in determining that it was not permitted to impose once again a 40–year overall sentence. Because both issues present questions of law, our review is de novo.See Armstrong v. Harris, 773 So.2d 7, 11 (Fla.2000). We conclude that the trial court erred in both instances.

Increased Mandatory Minimum Sentence

“It is well established that once a defendant has begun serving a lawfully-imposed sentence, the defendant may not thereafter be resentenced for an increased term of incarceration.” Rizzo v. State, 430 So.2d 488 (Fla. 1st DCA 1983). This principle applies to any increase to a mandatory minimum aspect of a sentence. See Macias v. State, 572 So.2d 22, 23 (Fla. 4th DCA 1990) (holding it was error to increase a mandatory minimum sentence once the court entered a written sentence which the appellant had begun serving).

Although the trial court here declared at the resentencing hearing that its intent at the time it imposed the original sentence was for Appellant to serve 40 years in prison, it is clear from the transcript of the original sentencing hearing, and the written sentencing documents signed at that hearing, that the court's sentence was for 40 years' imprisonment, with a special provision that Appellant serve a mandatory minimum of 25 years.

If the court intended for Appellant to mandatorily serve the entirety of 40 years, it could have legally imposed such a sentence pursuant to section 775.087(2)(a) 3, Florida Statutes, at the time of the original sentencing. That statute provides, in relevant part:

Any person who is convicted of a felony ... regardless of whether the use of a weapon is an element of the felony, and during the course of the commission of the felony such person discharged a “firearm” or “destructive device” as defined in s. 790.001 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.

In Mendenhall, our supreme court held that, regardless of what the maximum sentence may have been, but for this statute, a trial court has the discretion to impose a mandatory minimum in excess of 25 years. 48 So.3d at 742. Here, the trial court did not do so in its original sentence; thus, its new sentence increasing the mandatory minimum portion of Appellant's sentence from 25 years to 37.55 years was legally impermissible.

Also, contrary to the trial court's finding, this new sentence was not, as in Bernal v. State, 76 So.3d 1112 (Fla. 1st DCA 2011), a mere restructuring to comport with its intent while also ensuring that the overall length of Appellant's sentence was not increased. Rather, the trial court upwardly modified Appellant's sentence by making the entire sentence a mandatory minimum, thus impermissibly increasing the previously-imposed mandatory minimum sentence.

It is clear from the trial court's order issued in advance of the resentencing hearing, and in our review of the transcript from that hearing, that the court relied on the Fourth District's Wiley opinion, which the trial court read as prohibiting a sentence in addition to a selected mandatory minimum sentence, if the resulting overall sentence exceeds the statutory maximum sentence for an offense absent the 10/20/Life requirement. Pursuant to Wiley, the trial court was of the opinion that it could not reimpose a sentence of 40 years with a 25–year minimum because such a sentence would exceed the 15–year maximum applicable to a second-degree aggravated battery felony. The court thus attempted to navigate the Mendenhall and Wiley decisions by imposing a mandatory minimum that did not exceed its original overall sentence of 40 years' imprisonment. As discussed below, however, to the extent Wiley stands for the proposition that, under section 775.087(2)(b), a trial court may impose a sentence in addition to its selected mandatory...

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