Opinion
No. 3D23-1759
12-20-2023
Walter BAILEY, Appellant, v. The STATE of Florida, Appellee.
Walter Bailey, in proper person. Ashley Moody, Attorney General, for appellee.
An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Marisa Tinkler Mendez, Judge. Lower Tribunal No. F06-30750
Walter Bailey, in proper person.
Ashley Moody, Attorney General, for appellee.
Before LOGUE, C.J., and EMAS and BOKOR, JJ. PER CURIAM.
Affirmed. See § 775.087(2)(a)3., Fla. Stat. (2006) (providing that any person convicted of an enumerated felony (including attempted murder) and "during the course of the commission of such felony such person discharged a firearm… and, as the result of the discharge, death or great bodily harm was inflicted upon any person, the convicted person shall be sentenced to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison") (emphasis added); State v. Waldron, 835 So. 2d 1217 (Fla. 5th DCA 2003) (reversing 15-year sentence because jury expressly found defendant used and discharged a firearm during the commission of an aggravated battery, resulting in great bodily harm, and therefore requiring the trial court to impose a 25-year minimum mandatory under the 10/20/Life statute, section 775.087(2)); State v. R.F., 648 So. 2d 293, 294 n.1 (Fla. 3d DCA 1995) ("Where, as here, the trial court imposes a sentence which is shorter than a required mandatory minimum sentence, the sentence is not within the limits prescribed by law and is properly viewed as an ‘illegal’ sentence"); State v. Lopez, 408 So. 2d 744 (Fla. 3d DCA 1982); State v. Scanes, 973 So. 2d 659 (Fla. 3d DCA 2008) (reversing three-year minimum mandatory sentence as illegal and remanding for imposition of statutorily required ten-year minimum mandatory sentence; holding that when a trial court imposes a sentence that is shorter than the required mandatory minimum sentence, the sentence is properly viewed as "illegal") (additional citations omitted); Allen v. State, 853 So. 2d 533, 534 (Fla. 5th DCA 2003) (affirming trial court’s modification of sentence from a three-year minimum mandatory sentence to a ten-year minimum mandatory sentence where sentencing statute required the imposition of a ten-year minimum mandatory sentence, and therefore, three- year minimum mandatory sentence was illegal). See also Kelsey v. State, 206 So. 3d 5, 11 (Fla. 2016) ("In 2012, we clarified that jeopardy attaches only to a legal sentence") (citing Dunbar v. State, 89 So. 3d 901, 905 (Fla. 2012)); State v. Swider, 799 So. 2d 388, 391 (Fla. 4th DCA 2001) ("A trial court may vacate an illegal sentence and impose a harsher sentence without violating the defendant’s double jeopardy rights"); Spatcher v. State, 228 So. 3d 1162, 1164 (Fla. 1st DCA 2017) ("We reject Spatcher’s suggestion that the oral-pro-nouncement-controls rule applies only when it benefits the defendant. That is tantamount to arguing that the lesser punishment always controls, a rule we have never recognized. The rule that oral pronouncements control operates whether it helps or hurts a defendant.")