TERRY LAMAR JAMES, JR. v. STATE OF FLORIDA , 244 So. 3d 1142 ( 2018 )

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
TERRY LAMAR JAMES, JR., )
DOC #R75570, )
)
Appellant, )
)
v. )
) Case No. 2D15-4793
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed April 18, 2018.
Appeal from the Circuit Court for Pinellas
County; Philip J. Federico, Judge.
Howard L. Dimmig, II, Public Defender, and
Tosha Cohen, Assistant Public Defender,
Bartow, for Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Cornelius C. Demps,
Assistant Attorney General, Tampa, for
Appellee.
SLEET, Judge.
Terry Lamar James, Jr., challenges his conviction and sentence for
aggravated assault on a law enforcement officer with the use of a firearm. James was
convicted following a jury trial, and the trial court sentenced him pursuant to section
775.087, Florida Statutes (2012),1 to a mandatory minimum term of twenty years to be
served consecutively to sentences imposed on other offenses for which James was
tried separately. We affirm James' conviction without comment. However, we must
reverse James' sentence because the trial court mistakenly believed that it had no
discretion in imposing the twenty-year mandatory minimum term consecutively to James'
other sentences. The State concedes the error.
At the time of the offense, officers were attempting to arrest James for
multiple robberies that had taken place the day before. During one of those robberies, the
gun used in the instant offense was stolen. At sentencing, the trial court stated as follows:
I think the law requires me to give a consecutive sentence
based on my reading of the statute. So, that's what I'm
following in this situation. It would be a tougher call given the
length of the sentences he has already had and his age as to
whether if I had discretion I would impose it consecutive or not,
but I think [the prosecutor] is correct; based on the language of
that statute it's pretty clear.
While that's a creative argument and credit to [defense
counsel] for coming up with it that it's part of one, one criminal
sequence. I think it was separated by a day, right, if I'm
remembering correctly?
(Emphasis added.) However, the Florida Supreme Court has held that
controlling precedent establishes the following points of law for
purposes of sentencing under the current 10-20-Life statute.
Generally, 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. It follows, therefore, that a trial court must impose
the mandatory minimum sentences concurrently under such
circumstances.
1Section 775.087 is commonly referred to as the 10-20-Life statute.
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If, however, multiple firearm offenses are committed
contemporaneously, during which time multiple victims are
shot at, then consecutive sentencing is permissible but not
mandatory. In other words, a trial judge has discretion to order
the mandatory minimum sentences to run consecutively, but
may impose the sentences concurrently.
Williams v. State, 186 So. 3d 989, 993 (Fla. 2016) (emphasis added) (citations omitted).
Here, it is clear from the record that the trial court believed that consecutive
sentencing was mandatory rather than permissible. Accordingly, we must reverse James'
sentence and remand for resentencing. See Mason v. State, 210 So. 3d 120, 121 (Fla. 2d
DCA 2016) ("When a trial court labors under the mistaken impression that it cannot
exercise its discretion at sentencing, the appellant is entitled to be resentenced.").
Affirmed in part, reversed in part, and remanded.
CASANUEVA and LUCAS, JJ., Concur.
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