Third District Court of Appeal
State of Florida
Opinion filed December 13, 2017.
Not final until disposition of timely filed motion for rehearing.
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No. 3D17-175
Lower Tribunal No. 07-36268B
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Brandon Burks,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the
Circuit Court for Miami-Dade County, Jose Fernandez, Judge.
Brandon Burks, in proper person.
Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant
Attorney General, for appellee.
Before SUAREZ, LAGOA, and SCALES, JJ.
LAGOA, J.
Brandon Burks (“Burks”) appeals from the trial court’s order denying his
motion to correct illegal sentence filed pursuant to Florida Rule of Criminal
Procedure 3.800(a) and from the trial court’s subsequent order denying his motion
for rehearing. Notwithstanding Burk’s sentence as a prison releasee reoffender
under section 775.082(9)(a)(3)(a), Florida Statutes (2007), the trial court had a
nondiscretionary duty to sentence Burks to a mandatory minimum term of
imprisonment under section 775.087(2)(a)(3), Florida Statutes (2007), and
therefore, we reverse.
I. FACTUAL AND PROCEDURAL HISTORY
On November 9, 2007, Burks was charged by information with aggravated
assault with a firearm, attempted first degree murder with a firearm, and resisting
an officer without violence. A jury found Burks guilty on all counts. The jury also
made a specific finding that during the commission of the offense of attempted
first degree murder with a firearm, Burks possessed a firearm, which he discharged
causing great bodily harm.
The trial court sentenced Burks to a twenty-year minimum mandatory term
on the charge of aggravated assault with a firearm, and to a term of 364 days, time
served, on the charge of resisting an officer without violence. As to the charge of
attempted first degree murder with a firearm, the trial court sentenced Burks to a
term of natural life under the Prison Releasee Reoffender (“PRR”) statute,
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specifically section 775.082(9)(a)(3)(a), Florida Statues (2007). Of significance to
this appeal, although the jury found that Burks discharged a firearm causing great
bodily harm during the commission of the attempted first degree murder, the trial
court did not sentence Burks under section 775.087(2)(a)(3), Florida Statutes
(2007)—commonly known as the “10/20/Life” statute—which provides that a
“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”
when a defendant discharges a firearm inflicting death or great bodily harm during
the commission or attempted commission of enumerated felonies. With regard to
its unwillingness to impose a mandatory minimum sentence under section
775.087(2)(a)(3), the trial court stated:
He is serving life with no possibility of parole; so there is
no reason at this point to impose that. For some reason it
comes back on appeal as to P.R.R. ot [sic] being valid,
then obviously, we will look at the 25 min. mand. to
possibly life at 10, 20.
This Court affirmed Burks’s convictions and sentences on direct appeal. Burks v.
State, 57 So. 3d 972 (Fla. 3d DCA 2011).
In October 2016, Burks filed the instant 3.800(a) motion arguing that his
sentence on the attempted first degree murder with a firearm conviction was illegal
because the trial court failed to impose the statutory twenty-five year mandatory
minimum sentence for discharging a firearm causing great bodily harm pursuant to
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section 775.087(2)(a)(3).1 The State filed a response, acknowledging that the
imposition of a “concurrent twenty-five (25) year sentence under F.S. 775.087 . . .
would have been proper,” but asserting that Burks’s sentence was not illegal
because his mandatory life sentence was “proper on the case of the record.” The
trial court denied Burks’s motion, concluding that because Burks’s sentence of life
imprisonment as a prison releasee reoffender did not exceed the statutory
maximum authorized by law, it was legal on its face. The trial court subsequently
denied Burks’s motion for rehearing, and this timely appeal ensued.
II. STANDARD OF REVIEW
“‘Because a motion to correct a sentencing error involves a pure issue of
law, our standard of review is de novo.’” Brooks v. State, 199 So. 3d 974, 976
(Fla. 4th DCA 2016) (quoting Smith v. State,
143 So. 3d 1023, 1024 (Fla. 4th
DCA 2014)).
III. ANALYSIS
A court “may at any time correct an illegal sentence imposed by it . . . 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); see also Martinez v. State, 211
So. 3d 989, 991 (Fla. 2017). “A rule 3.800(a) motion to correct an illegal
1 As the Fifth District Court of Appeal stated in Vargas v. State,
188 So. 3d 915,
916 n.1 (Fla. 5th DCA 2016), “[m]otions seeking to impose mandatory minimums
are typically filed by the State, but nothing prohibits a defendant from filing such a
motion.”
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sentence is intended to address cases in which the sentence imposes ‘a kind of
punishment that no judge under the entire body of sentencing statutes could
possibly inflict under any set of factual circumstances.’” Rutherford v. State, 93
So. 3d 1132, 1132 (Fla. 1st DCA 2012) (quoting Carter v. State,
786 So. 2d 1173,
1178 (Fla. 2001)); see also State v. McMahon,
94 So. 3d 468, 477 (Fla. 2012)
(quoting State v. Akins,
69 So. 3d 261, 268-69 (Fla. 2011)).
Here, the trial court sentenced Burks to a term of natural life for the offense
of attempted first degree murder with a firearm pursuant to the PRR statute,
specifically, section 775.082(9)(a)(3)(a), Florida Statutes (2007). That statute
provides, in relevant part, that a prison releasee reoffender who commits a felony
punishable by life “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.” Id. A defendant sentenced as a prison releasee reoffender
also “shall not be eligible for parole, control release, or any form of early release”
and “must serve 100 percent of the court-imposed sentence.” § 775.082(9)(b), Fla.
Stat. (2007).
On appeal, Burks contends that the trial court erred in failing to sentence
him under Florida’s 10/20/Life statute, specifically section 775.087(2)(a)(3), and
that the failure to do so rendered his sentence illegal. Section 775.087(2)(a)(3)
provides for mandatory minimum terms of imprisonment where a defendant
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discharged a firearm in the commission or attempted commission of a felony
resulting in death or great bodily harm and states in relevant part:
(2)(a) 1. Any person who is convicted of a felony or an
attempt to commit a felony, regardless of whether the use
of a weapon is an element of the felony, and the
conviction was for:
a. Murder;
....
3. Any person who is convicted of a felony or an
attempt to commit a felony listed in sub-subparagraphs
(a)1.a.-q., regardless of whether the use of a weapon is an
element of the felony, and during the course of the
commission of the felony such person discharged a
“firearm” or “destructive device” as defined in s. 790.001
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.
§ 775.087(2)(a)(3), Fla. Stat. (2007) (emphasis added).
Burks is correct that the trial court was required to sentence him under
section 775.087(2)(a)(3), the relevant provision of the 10/20/Life statute. Section
775.087(2)(d), Fla. Stat. (2007), specifically states that “[i]t is the intent of the
Legislature that offenders who actually possess . . . firearms . . . be punished to the
fullest extent of the law, and the minimum terms of imprisonment imposed
pursuant to this subsection shall be imposed for each qualifying felony count for
which the person is convicted.” (emphasis added). A trial court, therefore, has no
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discretion in deciding whether to sentence a defendant under section 775.087(2)
when a defendant possessed or discharged a firearm during the commission of an
enumerated felony. See Dunbar v. State, 89 So. 3d 901, 906 n.5 (Fla. 2012) (“[N]o
discretion is given to trial courts in deciding whether to impose mandatory
minimum terms under section 775.087(2) . . . .”); Termitus v. State,
86 So. 3d
1179, 1181 (Fla. 5th DCA 2012) (reversing denial of a rule 3.800(a) motion to
correct illegal sentence where the trial court failed in its nondiscretionary duty to
impose required mandatory minimum sentences under section 775.082(2));
Johnson v. State,
53 So. 3d 360, 362 (Fla. 5th DCA 2011) (“[T]he imposition of a
mandatory minimum sentence under section 775.087(2) is a non-discretionary duty
of a trial court where the record reflects that the defendant qualifies for mandatory
minimum sentencing.”). Accordingly, “[w]here the judge has no discretion in
imposing a mandatory minimum sentence, the failure to do so makes the sentence
illegal.” Vargas,
188 So. 3d at 916 (finding defendant’s sentences illegal where
they were not imposed as mandatory minimum sentences as required by section
775.087(2)).
The State argues that the trial court’s failure to impose a sentence under
section 775.087(2)(a)(3) did not render Burks’s sentence illegal because of the
“precedence” given to sentencing under the PRR statute, section 775.082. The
State’s argument, however, is contrary to Florida Supreme Court precedent that the
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specific provisions of section 775.087(2) control over the general provisions of
section 775.082 regarding statutory maximums.
In McDonald v. State, 957 So. 2d 605, 607 (Fla. 2007), McDonald was
sentenced as a prison releasee reoffender to concurrent mandatory life sentences
under the PRR statute, section 775.082(9), Florida Statutes (2000).2 In addition,
the trial court imposed concurrent ten-year mandatory minimum sentences on the
same counts for possession of a firearm during the commission of the offenses
under the 10/20/Life statute, section 775.087, Florida Statutes (2000).
Id. The trial
court denied McDonald’s subsequent rule 3.800(a) motion challenging the
imposition of the mandatory minimum sentences, and the Fourth District Court of
Appeal affirmed. McDonald v. State,
912 So. 2d 74 (Fla. 4th DCA 2005). In
approving the Fourth District’s decision, the Florida Supreme Court determined
that the appellate court properly relied upon the plain meaning of section
775.087(2)(c), which states:
(c) If the minimum mandatory terms of imprisonment
imposed pursuant to this section exceed the maximum
sentences authorized by s. 775.082, s. 775.084, or the
Criminal Punishment Code under chapter 921, then the
mandatory minimum sentence must be imposed. If the
mandatory minimum terms of imprisonment pursuant to
this section are less than the sentences that could be
imposed as authorized by s. 775.082, s. 775.084, or the
Criminal Punishment Code under chapter 921, then the
2The 2007 versions of the statutes at issue are unchanged from the 2000 versions
considered in McDonald.
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sentence imposed by the court must include the
mandatory minimum term of imprisonment as required in
this section.
McDonald, 957 So. 2d at 609 (emphasis in original) (quoting § 775.087(2)(c), Fla.
Stat. (2000)). The Florida Supreme Court agreed with the Fourth District that the
language of section 775.087(2)(c) “plainly requires that the mandatory minimum
sentence be imposed concurrently with the minimum mandatory sentence of the
PRR statute even though the 10–20–LIFE sentence is less than the PRR sentence.”
Id. at 611. The Florida Supreme Court also found that “the Fourth District
properly concluded that the more specific provisions contained in the 10–20–LIFE
statute should control over the more general provisions of the PRR statute.” Id.
Finally, the Florida Supreme Court acknowledged that the imposition of a sentence
under the 10/20/Life statute concurrent with a greater sentence under the PRR
statute will have “very little, if any, practical effect in most cases,” but “[b]ecause
the Legislature clearly intends that criminals using firearms to commit violent
crimes receive the maximum sentence, the mandatory minimum 10–20–LIFE
sentence must be imposed even if it is less than another sentence that runs
concurrently.” Id. at 611-12. As such, the Florida Supreme Court, in addressing
concurrent sentencing under the PRR statute and the 10/20/Life statute, held that
“the minimum sentence mandated by the 10–20–LIFE statute must be imposed
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concurrently with the PRR sentence even when the 10–20–LIFE sentence is the
lesser sentence. Id. at 613.
Subsequently, in Mendenhall v. State, 48 So. 3d 740 (Fla. 2010), the Florida
Supreme Court addressed the issue of “whether the mandated ‘minimum term of
imprisonment of not less than 25 years and not more than a term of imprisonment
of life in prison’ under section 775.087(2)(a)(3) gives the trial court the discretion
to impose a sentence anywhere within the range of twenty-five years to life, even if
that sentence exceeds the statutory maximum” under section 775.082(2).
Id. at
745. The Florida Supreme Court held “that the specific provisions of the 10–20–
Life statute with regard to mandatory minimums control over the general
provisions of section 775.082 regarding statutory maximums” and concluded “that
the trial court has discretion under section 775.087(2)(a)(3) to impose a mandatory
minimum of twenty-five years to life, even if that mandatory minimum exceeds the
statutory maximum provided for in section 775.082.”
Id. at 742.
In reaching its conclusion that Mendenhall was properly sentenced to thirty-
five years with a thirty-five-year mandatory minimum, notwithstanding the
relevant statutory maximum of thirty years contained in section 775.082 for
Mendenhall’s offense, the Florida Supreme Court relied upon its analysis in
McDonald and stated that “[i]n resolving any perceived conflict between the
statutory maximum in the general sentencing statute and the mandatory minimum
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range of twenty-five years to life, we conclude that the specific provisions of
section 775.087(2)(a)(3) prevail over the general provisions of the 775.082
regarding statutory maximums.” Id. at 748.
Accordingly, because the specific provisions of the 10/20/Life statute
control over the general sentencing maximums set forth in section 775.082, we
hold that the trial court was required, pursuant to section 775.087(2)(a)(3), to
sentence Burks concurrently under the 10/20/Life statute, notwithstanding his
sentence as a prison releasee reoffender under section 775.082(9)(a)(3)(a). The
trial court’s failure to do so rendered Burks’s sentence illegal. Cf. Pitts v. State,
202 So. 3d 882, 885 (Fla. 4th DCA 2016) (stating that where trial court was
required to sentence defendant to life imprisonment under section 775.082(1), the
trial court was also required to impose a concurrent mandatory minimum sentence
within the range of twenty-five years to life under section 775.087(2)(a)(3)).
Reversed and remanded for resentencing.
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