Timothy Herschel Thomas v. State of Florida

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
TIMOTHY HERSCHEL NOT FINAL UNTIL TIME EXPIRES TO
THOMAS, JR., FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED
Appellant,
CASE NO. 1D15-4713
v.
STATE OF FLORIDA,
Appellee.
_____________________________/
Opinion filed November 2, 2016.
An appeal from the Circuit Court for Duval County.
Mark J. Borello, Judge.
Nancy A. Daniels, Public Defender, and David Alan Henson, Assistant Public
Defender, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, and Angela R. Hensel, Assistant Attorney
General, Tallahassee, for Appellee.
PER CURIAM.
Appellant was convicted of four offenses—two counts of attempted second-
degree murder (counts 1 and 2), discharging a firearm from a vehicle (count 3), and
possession of a firearm by a convicted felon (count 4)—arising out of an incident at
a gas station during which he shot a gun from his car at another car that had two
occupants. Appellant was sentenced as a prison releasee reoffender (PRR) to 30
years on count 1, with a 25-year mandatory minimum term under the 10-20-Life
statute; 30 years on count 2, with a 20-year mandatory minimum term under the 10-
20-Life statute; five years on count 3; and 10 years on count 4, with a 3-year
mandatory minimum term. 1 All of the sentences, and all of the mandatory minimum
terms, were ordered to run consecutively.
On appeal, Appellant argues—and the State concedes—that the trial court
erroneously concluded that (1) it was required to impose the PRR sentences in counts
1 and 2 consecutively, see State v. Mosley, 149 So. 3d 684, 688 (Fla. 2014)
(explaining that trial court “may” impose consecutive PRR sentences); and (2) it
was required to impose all of the mandatory minimum terms under the 10-20-Life
statute consecutively, see Williams v. State, 186 So. 3d 989, 993 (Fla. 2016)
(explaining that “consecutive sentencing is permissible but not mandatory” when the
defendant commits multiple firearm offenses contemporaneously and shoots at
multiple victims). However, contrary to Appellant’s argument, the trial court did
1
The written judgment and sentence indicates that the mandatory minimum terms
on counts 1 and 2 were imposed pursuant to the PRR statute, but that is inconsistent
with the trial court’s oral pronouncement at the sentencing hearing that the
mandatory minimums on those counts were imposed pursuant to the 10-20-Life
statute. The oral pronouncement controls. See Ashley v. State, 850 So. 2d 1265,
1268 (Fla. 2003).
2
not err in imposing the sentence for count 3 consecutively because the plain language
of the 10-20-Life statute required the court to impose the sentences for the
“qualifying” offenses in counts 1, 2, and 4, consecutively to the sentence for the
“non-qualifying” offense in count 3. See Martin v. State, 190 So. 3d 252, 255 (Fla.
1st DCA 2016) (discussing section 775.087(2)(d), Florida Statutes).
Accordingly, we reverse Appellant’s sentences and remand for resentencing
in accordance with the above-cited cases. We affirm all of the other issues raised by
Appellant without discussion.
AFFIRMED in part; REVERSED and REMANDED in part.
LEWIS, WETHERELL, and JAY, JJ., CONCUR.
3