Terry Marshall III v. State of Florida , 241 So. 3d 969 ( 2018 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D17-2763
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TERRY MARSHALL III,
Petitioner,
v.
STATE OF FLORIDA,
Respondent.
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Petition Alleging Ineffective Assistance of Appellate Counsel—
Original Jurisdiction.
March 29, 2018
PER CURIAM.
Terry Marshall III robbed an acquaintance at gunpoint. After
Marshall was convicted of armed robbery, the trial court sentenced
him to thirty-three years in prison as a habitual violent offender
pursuant to section 775.084, Florida Statutes. As part of that
sentence, the court imposed a fifteen year mandatory-minimum
term. See § 775.084(4)(b), Fla. Stat. (2012) (providing that a
habitual violent felony offender convicted of a first-degree felony
“shall not be eligible for release for 15 years”). Because the jury
found Marshall was in actual possession of a firearm during the
robbery, the court also imposed a ten year mandatory-minimum
term. See § 775.087(2)(a)1., Fla. Stat. (2012) (providing that an
offender who actually possessed a firearm during certain offenses,
including robbery, “shall be sentenced to a minimum term of
imprisonment of 10 years”). Over defense counsel’s objection, the
court orally imposed the two mandatory-minimum terms
consecutively. Marshall’s direct appeal, which only challenged an
evidentiary ruling during trial, resulted in affirmance without
opinion. Marshall v. State, 166 So. 3d 772 (Fla. 1st DCA 2015)
(table).
Marshall now files a petition alleging ineffective assistance of
appellate counsel. He claims his appointed attorney should have
contested the consecutive mandatory-minimum terms. He
correctly contends the consecutive sentences were not permitted
by law. * See Jones v. State, 667 So. 2d 349, 349 (Fla. 1st DCA 1995)
(“[O]n the authority of the recent decision of the Florida Supreme
Court in Jackson v. State, 659 So. 2d 1060 (Fla. 1995), we hold that
the trial court erred in imposing a consecutive three-year
minimum mandatory sentence for the use of a firearm together
with a 15-year habitual violent felony offender sentence for
offenses that arose out of a single criminal episode.”). The State
argues that Marshall cannot demonstrate the required prejudice
to be entitled to relief, see Rutherford v. Moore, 774 So. 2d 637, 643
(Fla. 2000), because the written judgment and sentence imposed
the two mandatory-minimum terms concurrently. But the oral
pronouncement controls, Ashley v. State, 850 So. 2d 1265 (Fla.
2003), and Marshall is currently serving an unlawful sentence.
We conclude Marshall’s appellate counsel was ineffective for
failing to move to correct the sentence and, if unsuccessful, raising
the issue on direct appeal. See Fla. R. App. P. 9.140(e) (providing
that a sentencing error may not be raised on appeal unless first
brought to the attention of the lower court at the time of sentencing
or by a rule 3.800(b) motion); Fla. R. Crim. P. 3.800(b) (2)
(permitting appellate counsel to file a motion to correct a
sentencing error while a direct appeal is pending); Anderson v.
State, 988 So. 2d 144, 146 (Fla. 1st DCA 2008) (finding appellate
counsel ineffective for failing to file a rule 3.800(b)(2) motion
challenging an illegal reclassification of the degree of felony).
* Marshall raises a second ineffective assistance claim which
we reject without discussion.
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Accordingly, we grant the petition and direct the trial court to
resentence Marshall. See id. (“[W]here a second appeal would be
redundant or unnecessary, it is appropriate to simply grant
petitioner the relief to which he would have been entitled had the
issue been raised in the original appeal.”).
PETITION GRANTED.
WOLF, OSTERHAUS, and WINSOR, JJ., 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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Terry Marshall III, pro se, Petitioner.
Pamela Jo Bondi, Attorney General, and Samuel B. Steinberg,
Assistant Attorney General, Tallahassee, for Respondent.
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