Robert R. Miller v. State of Florida

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA
ROBERT R. MILLER,
Appellant,
v. CASE NO. 1D13-5503
STATE OF FLORIDA,
Appellee.
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Opinion filed August 14, 2017.
An appeal from the Circuit Court for Duval County.
Kevin A. Blazs, Judge.
Andy Thomas, Public Defender, and Pamela D. Presnell, Assistant Public
Defender, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney
General, Tallahassee, for Appellee.
ON REMAND FROM THE FLORIDA SUPREME COURT
PER CURIAM.
We previously affirmed appellant’s sentences based on our en banc decision
in Walton v. State, 106 So. 3d 522, 528 (Fla. 1st DCA 2013) (Walton I), where this
court held that “any mandatory minimum term required by section 775.087(2) –
whether the defendant fires a gun, or only carries or displays it – shall be imposed
consecutively to any other term imposed for any other felony.” However, the
Florida Supreme Court quashed our decision in this case and remanded for
reconsideration in light of its decisions in Walton v. State, 208 So. 3d 60 (Fla.
2016) (Walton II), and Williams v. State, 186 So. 3d 989 (Fla. 2016).
In Williams, the supreme court held that the 10-20-Life statute does not
require consecutive sentences when the sentences arise from a single criminal
episode. Rather, the supreme court held that “a trial judge has discretion to order
the mandatory minimum sentences to run consecutively, but may impose the
sentences concurrently.” Williams, 186 So. 3d at 993. In so determining, the
supreme court noted that “[g]enerally, consecutive sentencing of mandatory
minimum imprisonment terms for multiple firearm offenses is impermissible if the
offenses arose from the same criminal episode and a firearm was merely possessed
but not discharged”; however, “[if] . . . multiple firearm offenses are committed
contemporaneously, during which time multiple victims are shot at, then
consecutive sentencing is permissible but not mandatory.” Id. The supreme court
did not explicitly discuss a case factually similar to this one, in which appellant
committed two gun-related offenses, attempted second-degree murder and
possession of a firearm by a convicted felon, but appellant’s crimes involved only
one victim who sustained only one physical injury.
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In line with our precedent outlined in Burns v. State, 212 So. 3d 546 (Fla.
1st DCA 2017), and Wilson v. State, 42 Fla. L. Weekly D993b (Fla. 1st DCA May
2, 2017), we therefore REVERSE and REMAND appellant’s sentences for the trial
court to reconsider whether, in its discretion, it wishes for appellant to serve his
minimum mandatory sentences concurrently or consecutively. In so ruling, we
certify conflict with Torres-Rios v. State, 205 So. 3d 883 (Fla. 5th DCA 2016).
ROBERTS, JAY, and M.K. THOMAS, JJ., CONCUR.
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