Garfield Plummer v. State of Florida , 246 So. 3d 506 ( 2018 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D17-3275
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GARFIELD PLUMMER,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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On appeal from the Circuit Court for Duval County.
Bruce R. Anderson, Jr., Judge.
May 3, 2018
BILBREY, J.
Appellant, Garfield Plummer, appeals the denial of his
motion to correct illegal sentence pursuant to rule 3.800(a),
Florida Rules of Criminal Procedure. Appellant seeks relief for
two consecutively-imposed mandatory minimum sentences. The
State initially conceded error but then filed supplemental
authority which we analyze below. We find the initial concession
of error to be correct, and therefore reverse and remand for
resentencing.
Appellant entered an open plea to the information which
charged him with actual possession of a firearm by a convicted
felon and armed robbery of two different victims, all during one
criminal episode. The information did not allege that Appellant
discharged the firearm. See Bienaime v. State, 213 So. 3d 927,
929 (Fla. 4th DCA 2017) (requiring the State “to allege grounds
for enhancement in the charging document” in order to pursue
“an enhanced mandatory sentence” under the 10-20-Life
statutes). The court accepted Appellant’s open plea and applied
section 775.087(2), Florida Statutes (2010), part of the 10-20-Life
law which imposes mandatory minimum sentences.
For possession of a firearm by a convicted felon, the trial
court sentenced Appellant to five years’ imprisonment, with three
years’ mandatory minimum. For the armed robberies, the court
imposed two terms of ten years’ imprisonment, with ten years’
mandatory minimum. The court imposed the robbery sentences
concurrently to each other, but consecutively imposed the
sentence for the firearm possession. Thus, the three-year
mandatory minimum sentence was consecutive to the ten-year
mandatory minimum sentences.
Because Appellant did not take a direct appeal, his
convictions became final on September 24, 2010. As explained in
Lanham v. State, 60 So. 3d 532 (Fla. 1st DCA 2011), at the time
Appellant was sentenced, the decisional law in this court was
that consecutive mandatory minimum sentences were
impermissible when a defendant displayed a firearm but did not
discharge it while robbing multiple victims. See also Perry v.
State, 973 So. 2d 1289 (Fla. 4th DCA 2008); Irizarry v. State, 946
So. 2d 555 (Fla. 5th DCA 2006) (prohibiting consecutive
mandatory minimum sentences for the same criminal episode
where the firearm was not discharged). 1
In January 2012, Appellant filed a motion under rule 3.850,
Florida Rules of Criminal Procedure. One of his claims was that
counsel had acted ineffectively by failing to challenge the
1 Since there was no conflict between district courts at the
time Appellant was sentenced, Perry and Irizarry were binding
on the trial court. See Miller v. State, 980 So. 2d 1092 (Fla. 2d
DCA 2008) (holding that in absence of a conflict between
districts, the majority opinion of a district court is binding on all
Florida trial courts).
2
consecutive mandatory minimum sentences. While the motion
was pending in the trial court, this court receded from Lanham in
Walton v. State, 106 So. 3d 522 (Fla. 1st DCA 2013) (en banc)
(Walton I). In Walton I, we concluded that section 775.087(2)
required the imposition of consecutive mandatory minimum
sentences, even without the discharge of a firearm.
Consequently, the trial court denied Appellant’s rule 3.850
motion, and we affirmed the denial on appeal. See Plummer v.
State, 150 So. 3d 1139 (Fla. 1st DCA 2014).
Thereafter, in Williams v. State, 186 So. 3d 989 (Fla. 2016),
the supreme court explained that where offenses arise in the
same criminal episode and the firearm is possessed but not
discharged, mandatory minimum sentences should not be
consecutively imposed. Williams did allow trial courts to exercise
discretion in imposing either concurrent or consecutive sentences
where, unlike here, a firearm was discharged.
After its decision in Williams, the Florida Supreme Court
quashed this court’s Walton I decision in Walton v. State, 208 So.
3d 60 (Fla. 2016) (Walton II). In Walton II, the court noted its
opinion in Williams, where it stated that a consecutive
mandatory minimum sentence under section 775.087(2) “‘is
impermissible if the offenses arose from the same criminal
episode and a firearm was merely possessed but not discharged.’”
Walton II, 208 So. 3d at 64 (quoting Williams, 186 So. 3d at 993).
See also Gartman v. State, 197 So. 3d 1181 (Fla. 1st DCA 2016)
(reversing, based on Williams, consecutive mandatory minimum
sentences for armed robbery and possession of a firearm by a
convicted felon where no discharge of the firearm occurred).
Within days of the issuance of Williams, Appellant filed his
rule 3.800(a) motion asserting that the consecutive mandatory
minimum sentences he received were illegal. In June 2017, the
trial court determined that Williams controlled the issue. The
trial court then conducted a retroactivity analysis, concluded
Williams did not apply retroactively, and denied Appellant’s rule
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3.800(a) the motion. The court did not consider Walton II in its
analysis. 2
Appellant then brought this appeal. After first conceding
error, the State then filed Osei v. State, 226 So. 3d 1077 (Fla. 1st
DCA 2017), as supplemental authority. In Osei, we concluded
that Williams did not apply retroactively to cases that were final
when Williams was decided. Accordingly, we affirmed the denial
of the postconviction relief under rule 3.850. However, Osei is
distinguishable because it involved the discharge of a firearm. 3
Under Williams, consecutive mandatory minimum sentences
are permissible, but not required if there is a discharge of a
firearm. Therefore, a consecutive sentence for someone who
discharged a firearm is not an illegal sentence. See Carter v.
State, 786 So. 2d 1173, 1178 (Fla. 2001) (quoting Blakley v. State,
746 So. 2d 1182, 1186-87 (Fla. 4th DCA 1999)) (“To be illegal
within the meaning of rule 3.800(a) the sentence must impose a
kind of punishment that no judge under the entire body of
sentencing statutes could possibly inflict under any set of
circumstances.”). Because of the discharge of a firearm in Osei,
the consecutive mandatory minimum sentences could legally be
imposed within the sound discretion of the trial court.
2 Walton II quashed Walton I restoring the status of the
caselaw in the First District as set forth in Lanham.
3 The Osei opinion does not directly state it involved the
discharge of a firearm, but that can be discerned from the 35
years’ total sentence Osei received for the two offenses — twenty
years’ imprisonment mandatory minimum for aggravated
assault, which was then a qualifying offense, and fifteen years’
imprisonment, with three years’ mandatory minimum, for
possession of a firearm by a convicted felon. See §
775.087(2)(a)(1)(f) & (r), Fla. Stat. (2012). Judicial notice of our
records from Osei’s cases before the court also shows that he
discharged a firearm, unlike Appellant here. See Scheffer v.
State, 893 So. 2d 698, 699 (Fla. 5th DCA 2005) (“This court can
take judicial notice of its own records.”).
4
Because no firearm was discharged by Appellant, Osei is not
controlling. Rather, the result in this case is governed by Walton
II and Lanham which afford Appellant relief. Appellant’s
sentence was illegal when the sentence issued in 2010, so the
trial court erred when it applied a retroactivity analysis to
Williams. No trial court could legally have imposed a consecutive
mandatory minimum sentence as of 2010 as later explained by
Lanham. We therefore reverse and remand for the trial court to
impose concurrent mandatory minimum sentences. See Walton
II; Williams; Gartman. As this is a ministerial act, Appellant
need not be present. See Lanham, 60 So. 3d at 532.
REVERSED and REMANDED with directions.
B.L. THOMAS, C.J., and JAY, J., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Garfield Plummer, pro se, Appellant.
Pamela Jo Bondi, Attorney General, and Jason W. Rodriguez,
Assistant Attorney General, Tallahassee, for Appellee.
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