Summary
In Witherspoon v. State, 833 So.2d 790 (Fla. 3d DCA 2002), the Third District Court of Appeal reversed an order denying a Rule 3.800(a) motion where the state conceded that it was error for the trial court to impose consecutive minimum mandatory sentences for firearm offenses where the offenses occurred during a single criminal episode.
Summary of this case from Perreault v. StateOpinion
Case No. 3D01-3014.
Opinion filed March 13, 2002.
An Appeal under Fla.R.App.P. 9.141(b)(2) from the Circuit Court from Miami-Dade County, Daryl E. Trawick, Judge. Lower Tribunal No. 90-33634.
Michael Witherspoon, in proper person.
Robert A. Butterworth, Attorney General, for appellee.
Before LEVY, GERSTEN and GODERICH, JJ.
CONFESSION OF ERROR
The defendant, Michael Witherspoon, appeals from the denial of his motion to correct illegal sentence pursuant to Rule 3.800(a), Florida Rules of Criminal Procedure, alleging that the imposition of consecutive three year minimum mandatory sentences for his two attempted first degree murder convictions was illegal. We reverse based on the State's proper confession of error. See Ward v. State, 630 So.2d 217 (Fla.3d DCA 1993) ("It is error to impose consecutive mandatory minimum sentences for the use of a firearm during a single criminal episode, even where there are two victims, where the episode occurred without interruption in time and location." (quoting Weatherspoon v. State, 624 So.2d 405, 407 (Fla.2d DCA 1993))). On remand, the trial court is directed to correct the sentences so that the mandatory minimum sentences will be served concurrently to the attempted first degree murder sentences. See Palmer v. State, 438 So.2d 1, 4 (Fla. 1983). The defendant need not be present for such resentencing.
Reversed and remanded for resentencing with directions.