Daniel Scott Palmer v. State of Florida ( 2016 )

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
DANIEL SCOTT PALMER, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED
v. CASE NO. 1D15-1967
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed August 16, 2016.
An appeal from the Circuit Court for Clay County.
Don H. Lester, Judge.
Nancy A. Daniels, Public Defender, Susannah C. Loumiet, Assistant Public
Defender, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, Thomas H. Duffy and Kristen Lynn Bonjour,
Assistant Attorneys General, Tallahassee, for Appellee.
PER CURIAM.
Appellant appeals his judgment and sentence for two counts of aggravated
assault with a deadly weapon and two counts of simple assault, raising four issues
on appeal. We find merit as to two issues, and reverse for further proceedings
consistent with this opinion.
Appellant first asserts that the trial court reversibly erred in failing to apply
the correct standard to Appellant’s motion for new trial. The State properly
concedes that the trial court erred in applying a sufficiency of the evidence
standard, and that the correct standard was the weight of the evidence. See Spear
v. State, 860 So. 2d 1080 (Fla. 1st DCA 2003). Accordingly, we reverse and
remand for the trial court to consider Appellant’s motion for new trial. As we
previously noted in Spear:
Upon remand, if the trial court concludes that the verdict is against the
weight of the evidence, it should grant the motion for new trial. In the
event the trial court concludes that the verdict is not against the weight
of the evidence, it may again deny the motion and enter a new
judgment and sentence accordingly. See Adams v. State, 417 So.2d
826 (Fla. 1st DCA 1982); see also Geibel v. State, 817 So.2d 1042(Fla. 2d DCA 2002).
Id. at 1080.
On remand, if the trial court grants the motion for new trial, it need not
address the second error in this appeal; however, if the trial court denies
Appellant’s motion for new trial, it will also need to conduct further proceedings as
to sentencing. In particular, we find merit in Appellant’s fourth issue raised on
appeal, arguing that the trial court erred in imposing consecutive mandatory
minimum sentences as to the two counts of aggravated assault with a deadly
weapon under the 10-20-Life sentencing scheme based on the Florida Supreme
Court’s recent opinion in Williams v. State, 186 So. 3d 989 (Fla. 2016). This court
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has recently concluded that Williams effectively abrogated this court’s holding in
Walton v. State, 106 So. 3d 522 (Fla. 1st DCA 2013) (en banc), review granted,
145 So. 3d 830 (Fla. 2014) (holding trial courts are authorized to “stack”
mandatory minimum terms under 10-20-Life statute even when the defendant did
not discharge a firearm). See Palmer v. State, 189 So. 3d 330 (Fla. 1st DCA 2016).
Here, the jury only found that Appellant possessed a firearm during the
commission of the two counts of aggravated assault. For the reasons stated above,
we remand for further proceedings consistent with this opinion.
AFFIRMED in part, REVERSED in part, and REMANDED.
B.L. THOMAS, WINOKUR, and JAY, JJ., CONCUR.
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