FIFTH DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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Case No. 5D23-1362
LT Case No. 2016-CF-5542-A
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ROBERT JACOBY TURNER,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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3.800 appeal from the Circuit Court for Duval County.
Mark Borello, Judge.
Robert Jacoby Turner, Live Oak, pro se.
Ashley Moody, Attorney General, and Adam B. Wilson, Assistant
Attorney General, Tallahassee, for Appellee.
December 1, 2023
PER CURIAM.
Appellant appeals the circuit court’s summary denial of his
motion to correct illegal sentence filed pursuant to Rule 3.800(a) of
the Florida Rules of Criminal Procedure. We affirm in part, reverse
in part, and remand for further proceedings.
I.
A.
Appellant was charged with second-degree murder (count 1);
attempted second-degree murder (counts 2–8); discharging a
firearm from a vehicle (count 9); shooting or throwing deadly
missiles (count 10); and possession of a firearm by a convicted felon
(counts 11 and 12). The State filed a notice of intent to seek
habitual felony offender (“HFO”) sentencing.
As recounted by the First District in Appellant’s direct appeal:
Appellant was charged with a drive-by
shooting based on his firing multiple shots
from a handgun out of the passenger
window of an automobile at a group
assembled outside a convenience store. As
a result of the shooting Keshawn Rankin
was killed, and another victim was
injured. At trial, the driver of the
automobile and the other two passengers
all testified that Appellant fired at the
group from the automobile. Appellant's
defense was that one of the other
passengers was responsible for the
shooting. Other than testimony regarding
Appellant firing the handgun, there was
no testimony of Appellant committing any
other “act imminently dangerous to
another, and evincing a depraved mind” so
as to support second degree murder or
attempted second degree murder. See §§
782.04(2) & 777.04, Fla. Stat. (2016).
There was also no testimony to support
Appellant's guilt as a principal to the
crimes rather than the actual perpetrator,
and the jury was not instructed that
Appellant could be found guilty as a
principal. See § 777.011, Fla. Stat. (2016).
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Turner v. State,
301 So. 3d 1017, 1018 (Fla. 1st DCA 2019).
On June 9, 2017, Appellant was convicted as charged on
counts 1–8, with special verdict findings that he did not actually
possess a firearm. He was found guilty on count 12, with a special
verdict finding that he actually possessed a firearm. The jury
found Appellant not guilty on counts 9 and 10. Count 11 was nolle
prosequied.
At sentencing, the court stated, “it’s clear to the Court that”
the jury was convinced that Appellant committed the crime, “but
they did want to pardon him from the consequences of having a
firearm, probably because they didn’t like any of the people who
testified.” The court further stated, “I think the jury didn’t like
anybody, and so they felt Mr. Turner was guilty but they wanted
to save him from the consequences of having a firearm, which they
did.” The court noted that the jury had “actually asked permission
in advance if they could possibly do that, and the Court told them,
you’re the jury, you can do what you want to do, and they did.”
The State then presented evidence and argument to support
a prison releasee reoffender (“PRR”) sentence. The court sentenced
Appellant to life in the Department of Corrections (“DOC”) on
count 1, and 30 years in prison on counts 2–8 and 12. He was
sentenced as a PRR on counts 1–8. The written sentence also
reflected that Appellant was sentenced as a HFO on counts 2–8
and 12, but this was not orally pronounced. On count 12, he
received a 3-year mandatory minimum sentence for use of a
firearm.
Appellant appealed his convictions and sentences, arguing
“that the jury verdict was a true inconsistent verdict.” Turner, 301
So. 3d at 1018. The First District rejected his argument,
concluding that “although the jury verdict was factually
inconsistent, it does not amount to a true inconsistent verdict.” Id.
The First District reasoned:
Clearly the verdict was factually
inconsistent because the jury had no
evidence to support a finding of guilt
against Appellant unless Appellant
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possessed and discharged a handgun at
the assembled group. However, as the
Florida Supreme Court has stated, a true
inconsistent verdict requires more than
just factual or logical inconsistency[.] . . .
The second degree murder and attempted
second degree murder counts here are not
legally interlocking with another count.
Second degree murder and attempted
second degree murder do not include
possession or discharge of a firearm as an
element of the crimes. See §§ 782.04(2) &
777.04(1), Fla. Stat. Instead, possession or
discharge of a firearm while committing or
attempting to commit certain felonies
including second degree murder results in
certain mandatory sentences under
section 775.087, Florida Statutes (2016),
the 10-20-Life statute. Although logically
under the facts presented to the jury there
was no way Appellant could have
committed the murder and attempted
murder without possessing and
discharging a firearm that does not make
the verdict truly inconsistent.
Id. at 1018–20 (footnote omitted).
B.
Following his direct appeal, Appellant then filed a Rule
3.800(a) motion alleging that his sentences are illegal because they
exceed the statutory maximum. Specifically, Appellant argued
that the life sentence on count one exceeds the statutory maximum
allowed under section 775.082(9)(a), Florida Statutes, and that the
30-year sentences on counts 2–8 and 12 exceed the statutory
maximum for second-degree felonies. He argued that the written
sentence erroneously indicates he was sentenced as a HFO when
he was not, and that the oral pronouncement controls. He further
argued that counts 2–8 and 12 were improperly reclassified.
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The trial court denied Appellant’s motion. He has timely
appealed the court’s order.
II.
On appeal, Appellant argues that his life sentence on count 1
is illegal because second-degree murder is a first-degree felony, not
a life felony. He further argues that his sentences on counts 2–8
and 12 exceed the statutory maximum for second-degree felonies,
that the oral pronouncement of sentence controls over the written
sentence, and that the sentence could not be reclassified under
section 775.087(1). Finally, he argues for the first time that a
manifest injustice occurred when the court sentenced him as a
PRR despite the jury’s finding that he did not actually possess a
firearm. In response, the State concedes that the record supports
Appellant’s claim against the sentences imposed on counts 2–8 and
12, but it contends that the life sentence on count 1 is legal, and
the manifest injustice claim is both unpreserved and without
merit.
Rule 3.800(a) provides that “[a] court may at any time correct
an illegal sentence imposed by it, or an incorrect calculation made
by it in a sentencing scoresheet, when it is affirmatively alleged
that the court records demonstrate on their face an entitlement to
that relief[.]” Fla. R. Crim. P. 3.800(a)(1); see Echevarria v. State,
296 So. 3d 543, 544 (Fla. 5th DCA 2020).
Appellant’s life sentence on count 1 is legal. Second-degree
murder is a “felony of the first degree, punishable by imprisonment
for a term of years not exceeding life.” § 782.04(2), Fla. Stat. (2016).
“Upon proof from the state attorney that establishes by a
preponderance of the evidence that a defendant is a prison releasee
reoffender as defined in this section, such defendant is not eligible
for sentencing under the sentencing guidelines and must be
sentenced as follows: a. For a felony punishable by life, by a term
of imprisonment for life[.]” § 775.082(9)(a)3, Fla. Stat. (2016).
Because second-degree murder is a felony punishable by life in
prison, once the court found that Appellant qualified as a PRR—a
finding that the record supports—the court was required to
sentence him to life. We therefore affirm the circuit court’s denial
of Appellant’s claim against his life sentence on count 1.
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Appellant’s 30-year sentences on counts 2–8 and 12, however,
exceed the statutory maximum for second-degree felonies. While
the written sentence indicates that Appellant was sentenced as a
HFO, according to the sentencing hearing transcript, at no time
during the sentencing hearing did the court find that Appellant
qualified as a HFO. Nor did the court orally pronounce a HFO
sentence. The court’s oral pronouncement controls over its written
sentencing order, with the conflict cognizable for resolution in Rule
3.800(a) proceedings. See Williams v. State,
957 So. 2d 600, 603
(Fla. 2007) (per curiam). Therefore, the written sentencing order’s
inclusion of a HFO designation was error.
Moreover, Appellant’s convictions on counts 2–8 could not be
reclassified as first-degree felonies. Attempted second-degree
murder is a second-degree felony. §§ 777.04(4)(c), 782.04(2), Fla.
Stat. (2016). If a firearm is used in the commission of the offense
and the jury finds that a firearm was used, the offense can be
reclassified to a first-degree felony. § 775.087(1), Fla. Stat. (2016).
The lack of any jury finding that a defendant used a weapon
typically precludes reclassification of the offense under section
775.087(1). To be sure, at least one of our sister courts has held
that the lack of such a finding can survive a harmless-error
analysis where “[n]o rational jury would have found that
[defendant] did not use a firearm in his attempt to murder the
victim.” Knight v. State,
6 So. 3d 733, 735 (Fla. 2d DCA 2009).
However, when the jury is given special interrogatories and
renders an affirmative finding that the defendant did not possess
a firearm, even if that finding contravenes the evidence, the
defendant may not have his conviction reclassified to a higher
degree felony under section 775.087(1). See Ford v. State,
145 So.
3d 202, 203 (Fla. 1st DCA 2014); Williams v. State,
656 So. 2d 574,
575 (Fla. 1st DCA 1995).
The court could not reclassify Appellant’s convictions on
counts 2–8, because the jury found that Appellant did not actually
possess a firearm. Therefore, Appellant’s convictions for attempted
second-degree murder remained second-degree felonies. A PRR
sentence for a second-degree felony is a mandatory 15 years. See
§ 775.082(9)(a)3, Fla. Stat. (2016). Appellant’s 30-year sentences
on counts 2–8, therefore, are illegal.
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Appellant’s 30-year sentence for possession of a firearm by a
convicted felon (count 12) likewise cannot stand. Like the offense
charged in counts 2–8, that offense is a second-degree felony. See
§ 790.23(3), Fla. Stat. (2016). Although the jury found that
Appellant possessed a firearm on count 12, it cannot be reclassified
for use of a firearm, because use of a firearm is an essential
element of the offense. See § 775.087(1), Fla. Stat. (2016). The 30-
year sentence on count 12, therefore, is illegal.
Finally, we reject Appellant’s manifest injustice argument. To
the extent that it does not overlap with his other arguments on
appeal, Appellant’s manifest injustice argument was not raised
below and improperly attempts to relitigate the inconsistent
verdicts claim that failed in his direct appeal.
III.
For the foregoing reasons, we affirm the circuit court’s denial
of Appellant’s Rule 3.800(a) motion insofar as it challenged his life
sentence on count 1, but we reverse the circuit court’s denial of the
motion insofar as it challenged Appellant’s 30-year sentences on
counts 2–8 and 12, and we remand the case for further proceedings
consistent with our opinion.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
LAMBERT, MACIVER, and PRATT, 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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