MICHAEL WALLACH v. STATE OF FLORIDA , 242 So. 3d 442 ( 2018 )

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
MICHAEL WALLACH,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D16-829
[April 4, 2018]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Krista Marx, Judge; L.T. Case No. 50-2012-CF-006125-A.
Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant
Public Defender, West Palm Beach, for appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber,
Assistant Attorney General, West Palm Beach, for appellee.
PER CURIAM.
Michael Wallach appeals his seventeen convictions and several of his
sentences. We affirm his convictions without further discussion, but
reverse five of his sentences and remand for resentencing.
First, the defendant argues that some of his sentences were orally
pronounced to be concurrent with other sentences, but that the written
sentences were imposed to run consecutively. The State concedes that the
sentences imposed on the following counts should be reversed:
Oral
Count Crime Written Sentence
pronouncement
20 years –
Aggravated Assault with a 20 yrs.-
11 concurrent with
Firearm on a LEO consecutive
any other sentence
20 years –
Aggravated Assault with a 20 yrs.-
15 concurrent with
Firearm consecutive
any other sentence
1345 months –
Grand Theft (Motor 1345 months -
16-17 concurrent with
Vehicle and Firearm) consecutive
any other sentence
The State’s concession of error is well-taken. See Ashley v. State, 850
So. 2d 1265, 1268 (Fla. 2003) (“[A] court’s oral pronouncement of sentence
controls over the written document.”). On remand, the sentences imposed
on Counts 11, 15, 16, and 17 should be corrected so the written sentence
matches the court’s oral pronouncement.
Next, the defendant appeals the minimum-mandatory sentence
imposed on Count 10:
Count Crime per Information Min.-Man. Imposed
10 Burglary while armed with a firearm 10 years
Wallach was convicted of burglarizing a conveyance (a car) while armed
with a dangerous weapon. This is a felony of the first degree. §
810.02(2)(b), Fla. Stat. (2012). The State argues that the ten-year
mandatory minimum sentence imposed is legal because the defendant was
armed with a firearm and his sentence was enhanced under the 10-20-
Life statute. See § 775.087(2)(a)1., Fla. Stat. (2012) While burglary is one
of the enumerated felonies under the statute, if a defendant is convicted
of burglary of a conveyance, the minimum mandatory sentence under 10-
20-Life is three years, not ten years. Id.; see Figueroa-Montalvo v. State,
10 So. 3d 173, 174–75 (Fla. 5th DCA 2009) (“The crime of burglary of a
conveyance is ... listed as one of the charges to which the three-year
mandatory minimum applies.). Because the 10-20-Life statute imposes
only a three-year minimum mandatory sentence for the crime of burglary
of a conveyance, the ten-year minimum mandatory sentence enhancement
imposed here is illegal.
Finally, the defendant appeals the length of the sentence imposed on
Count 15:
Count Crime per Information Sentence imposed
15 Aggravated Assault with a Firearm 20 years
Wallach was convicted of aggravated assault, a felony of the third
degree. § 784.021(2), Fla. Stat. (2012). His sentence was reclassified to a
felony of the second degree under the 10-20-Life statute because he used
a firearm. § 775.087(1)(c). The maximum sentence for a felony of the
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second degree is fifteen years. § 775.082(3)(d). The twenty-year sentence
imposed is illegal.
The State argues that the sentence is legal under the 10-20-Life statute
because the defendant discharged the firearm during the crime. See §
775.087(2)(a)1. (providing for a twenty-year minimum term of
imprisonment where there is a finding that the person discharged the
firearm during the commission of the felony). We find that the twenty-year
enhancement was improperly imposed here because the jury did not find
that Wallach discharged the firearm during the aggravated assault
charged at Count 15.
We reverse the sentences imposed on Counts 10, 11, 15, 16, and 17
and remand for resentencing as follows:
Count Crime Instructions on Remand
Burglary while armed Remand for resentencing for “burglary of a
10
with a Firearm conveyance” while armed with a firearm.
Aggravated Assault with Remand for imposition of concurrent
11
a Firearm on a LEO sentencing orally pronounced.
(1) Remand for imposition of concurrent
sentencing orally pronounced.
Aggravated Assault with (2) Remand for resentencing as a
15
a Firearm reclassified second degree felony under the
10-20-Life statute with a maximum
sentence of fifteen years.
Grand Theft (Motor Remand for imposition of concurrent
16-17
Vehicle and Firearm) sentencing orally pronounced.
Reversed in part and remanded.
GERBER, C.J., GROSS and KUNTZ, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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