Walton v. State, 1D10–6776.

• Citation: 106 So.3d 522
• Decision Date: 12 February 2013
• Docket Number: No. 1D10–6776.,1D10–6776.
• Parties: Leronnie Lee WALTON, Appellant, v. STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

106 So.3d 522

Leronnie Lee WALTON, Appellant,

v.STATE of Florida, Appellee.

No. 1D10–6776.

District Court of Appeal of Florida,

First District.

Feb. 12, 2013.

Nancy A. Daniels, Public Defender, and Pamela D. Presnell, Assistant Public Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Samuel A. Perrone, Assistant Attorney General, Tallahassee, for Appellee.

EN BANC

MARSTILLER, J.

Leronnie Lee Walton (“Appellant”) appeals his convictions and sentences for two counts of attempted murder of a police officer and two counts of attempted armed robbery. We affirm the convictions without discussion.

However, Appellant raises two sentencing issues that do require discussion. The first is whether the trial court correctly imposed consecutive mandatory minimum sentences under section 775.087, Florida Statutes, the 10–20–Life statute, when Appellant'scrimes were all committed during a single episode. As explicated below, we affirm the sentencing scheme, concluding that section 775.087(2)(d) expressly authorizes consecutive mandatory minimum sentences. In reaching this conclusion, we recede from Lanham v. State, 60 So.3d 532 (Fla. 1st DCA 2011), in which we held consecutive mandatory minimum sentences impermissible where a defendant displays a firearm, but does not discharge it, while committing multiple offenses. We further certify conflict with Irizarry v. State, 946 So.2d 555 (Fla. 5th DCA 2006). The second issue is whether the trial court improperly resentenced Appellant in his absence. Concluding that the court erred, we remand for resentencing with Appellant present.

I.

In the early afternoon of September 10, 2008, Kristina Salas and her sister, Karine Nalbandyan, residents of City Ridge Apartments in Duval County, were putting their 3–year–old children into a car, preparing to pick up their older children from school. As Salas bent over to brush something from the car's seat, a man ambushed her, put her in a headlock, held a gun to her head, and demanded that she give him her purse or be killed. The two struggled over the purse until the handle broke and it fell to the ground. At that point, the man went to the other side of the car and demanded Nalbandyan's purse, also threatening her with the gun.

Detectives Shannon Fusco and James Johnston, with the Jacksonville Sheriff's Office, were investigating a theft at City Ridge Apartments when they came upon the scene. Detective Fusco identified herself as law enforcement and ordered the man threatening Nalbandyan to put the gun down. He responded by shooting at the detectives, and a gun battle ensued. Two eyewitnesses—a mother and her teenage daughter—who lived in the complex observed two men shooting at the detectives. They also saw the men get into an orange-colored vehicle and speed away from the scene. The mother was later able to identify the two shooters from a photo line-up; her daughter could identify only one. The man they both identified was Appellant.

Following a jury trial, Appellant was convicted of two counts of attempted murder of a police officer with possession and discharge of a firearm during commission, and two counts of attempted armed robbery with possession of a firearm during commission. Pursuant to section 775.087(2), Florida Statutes (2008), which mandates specific minimum sentences depending on whether a firearm is possessed, displayed, or discharged while committing specified crimes, the trial court sentenced Appellant to life imprisonment with 20 years' mandatory minimum on each attempted murder charge, and to 15 years' imprisonment with 10 years' mandatory minimum on each attempted armed robbery charge. All sentences and mandatory minimums were to run consecutively.

While this appeal was pending, Appellant filed a motion in the trial court pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) asserting that the life sentences were illegal because the statutory provision authorizing life imprisonment for attempted murder of a police officer did not go into effect until after Appellant committed his crimes. He also asserted that the consecutive mandatory minimum sentences were illegal because all the crimes occurred during a single episode. Appellant did not otherwise challenge the sentences imposed for the attempted armed robberies.

The parties ultimately agreed that under section 775.087(1)(b), ¹ the attempted murders, normally second-degree felonies, could be reclassified to first-degree felonies subject to a maximum permissible prison term of 30 years for each count. Accordingly, the trial court resentenced Appellant to two 30–year terms for the attempted murders, re-imposed the 20–year mandatory minimums for those offenses, left intact the sentences originally imposed for the attempted armed robberies, and again ordered that all sentences and mandatory minimums run consecutively. Appellant was not present at resentencing. Although the trial court expressed concern about proceeding in Appellant's absence, defense counsel felt it “would be okay” because Appellant's total sentence was being reduced, not increased.

II.

We first address whether the trial court may impose consecutive mandatory minimum sentences under section 775.087, Florida Statutes. Appellant argues on appeal, as he did below in his 3.800(b)(2) motion, that such “stacking” of mandatory minimum sentences under section 775.087 is impermissible where the crimes all occurred during a single episode.

Under section 775.087(2)(a) 1., Florida Statutes (2008), a person who is convicted of committing or attempting to commit any of several enumerated felonies, “regardless of whether the use of a weapon is an element of the felony,” and who, while committing the offense, “actually possessed a ‘firearm’ or ‘destructive device’ as those terms are defined in s. 790.001, shall be sentenced to a minimum term of imprisonment of 10 years[.]” If the person “discharged a ‘firearm’ or ‘destructive device’ ” while committing the offense, section 775.087(2)(a) 2., Florida Statutes (2008), mandates “a minimum term of imprisonment of 20 years.” Murder and robbery are two of the specified felonies. See§§ 775.087(2)(a) 1.a, (2)(a) 1.c., Fla. Stat. (2008).

Appellant here was convicted of two counts of attempted murder and two counts of attempted armed robbery. On the attempted murders, the trial court imposed 20–year mandatory minimum sentences because Appellant fired a gun at two police officers. And on the attempted armed robberies, the court imposed 10–year mandatory minimum sentences because Appellant possessed, but did not discharge, a gun.

Section 775.087(2)(d), Florida Statutes (2008), specifically addresses consecutive imposition of mandatory minimums, stating:

It is the intent of the Legislature that offenders who actually possess, carry, display, use, threaten to use, or attempt to use firearms or destructive devices be punished to the fullest extent of the law, and the minimum terms of imprisonment imposed pursuant to this subsection shall be imposed for each qualifying felony count for which the person is convicted. The court shall impose any term of imprisonment provided for in this subsection consecutively to any other term of imprisonment imposed for any other felony offense.(Emphasis added). Before the Legislature enacted this subsection in 1999,² Florida Supreme Court precedent governed whether mandatory minimum sentences could be imposed consecutively for multiple crimes occurring in a single episode. In Palmer v. State, 438 So.2d 1 (Fla.1983), the supreme court held that while consecutive mandatory minimum sentences were permissible for offenses occurring in separate incidents, they were impermissible—absent explicit statutory authority—for multiple crimes occurring in a single episode. Id. at 3–4. There, the defendant displayed, but did not discharge, a firearm while committing multiple felonies—armed robberies and aggravated assaults—against multiple victims during one criminal episode. Id. at 2.

Subsequently, in State v. Thomas, 487 So.2d 1043 (Fla.1986), the supreme court permitted consecutive mandatory minimums where the defendant committed attempted first-degree murder and aggravated assault in one incident, shooting at two victims and injuring one. Id. at 1044. The court reasoned that even without explicit statutory authority, consecutive sentencing was permissible because the single incident involved “two separate and distinct offenses involving two separate and distinct victims.” Id. Later, in State v. Christian, 692 So.2d 889 (Fla.1997), the supreme court further refined the rule, holding that “for offenses arising from a single episode ... stacking of firearm mandatory minimum terms [ ] is permissible where the defendant shoots at multiple victims, and impermissible where the defendant does not fire the weapon.” Id. at 890–91 (footnotes omitted).

If section 775.087(2)(d) had not been in effect when the trial court sentenced Appellant, Palmer,Thomas, and Christian would dictate that Appellant's consecutive mandatory minimum sentences for the attempted murders are valid because he fired his gun at two victims. But the consecutive mandatory minimum sentences for the attempted armed robberies would be invalid because Appellant did not fire his gun while committing those crimes.

Section 775.087(2)(d) was and is in effect, however, having been enacted shortly after Christian. The question, therefore, is whether the statute changes the outcome just described.

In State v. Sousa, 903 So.2d 923 (Fla.2005), the supreme court held that section 775.087(2)(d) explicitly authorizes consecutive mandatory minimum sentences imposed under 10–20–Life. Id. at 927. On review in Sousa was a Second District decision disapproving the very type of stacking the supreme court had approved in Christian—consecutive minimum mandatory terms for multiple offenses committed during a single episode where the defendant shot at multiple victims. The Second...