Leon Bullard v. State of Florida

IN THE DISTRICT COURT OF APPEAL
FIRST DISTRICT, STATE OF FLORIDA

LEON BULLARD, NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
Appellant, DISPOSITION THEREOF IF FILED

v. CASE NO. 1D14-2076

STATE OF FLORIDA,

Appellee.
_________________________/

Opinion filed July 14, 2015.

An appeal from the Circuit Court for Duval County.
Kevin A. Blazs, Judge.

Nancy A. Daniels, Public Defender, Barbara J. Busharis, Assistant Public
Defender, Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, Kristen Bonjour, Assistant Attorney General,
Tallahassee, for Appellee.

THOMAS, J.

Appellant appeals a final order adjudicating him guilty of attempted second

degree murder, aggravated battery with discharge of a firearm, and possession of a

firearm by a convicted felon, along with the three consecutive mandatory

minimum sentences. Appellant raises five issues on appeal; only two merit

discussion. For the reasons explained below, we reverse Appellant’s conviction
for aggravated battery with discharge of a firearm, and instruct the trial court to

reduce the conviction to aggravated battery, and resentence Appellant accordingly.

See § 924.33, Fla. Stat. We affirm Appellant’s convictions of attempted second

degree murder and possession of a firearm by a convicted felon, as well as the

consecutive mandatory minimum sentences, subject to the aforementioned

reduction in the sentence for aggravated battery.

At trial, Appellant moved for judgment of acquittal on the enhancement to

the battery charge, arguing that there was no evidence of the firearm discharging a

second time during the battery. We review a motion for judgment of acquittal

de novo. Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002). The only purported

evidence of the firearm discharging during the battery was a surveillance video,

and both parties agree that our review of this surveillance video is de novo. See

Parker v. State, 873 So. 2d 270, 279 (Fla. 2004). Upon our close review of the

video, we find that it does not provide evidence of this second discharge during the

battery, and that the trial court erred in not granting a judgment of acquittal as to

the enhancement of the battery charge. Without the enhancement, Appellant’s 25-

year sentence for aggravated battery could not be lawfully imposed.

Sentencing errors are reviewed de novo. Clowers v. State, 31 So. 3d 962,

965 (Fla. 1st DCA 2010). Section 775.087(2)(a)1., Florida Statutes, provides that

any person convicted of, inter alia, aggravated battery, and “during the

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commission of the offense, such person actually possessed a ‘firearm’. . . shall be

sentenced to a minimum term of imprisonment of 10 years . . . .” Therefore, we

remand for resentencing.

Appellant also asserts that the trial court erred by imposing consecutive

mandatory minimum sentences, arguing that the trial court’s finding that

consecutive sentences were required by law was erroneous. We disagree. Section

775.087(2)(d), Florida Statutes, plainly states that consecutive mandatory

minimum sentences shall be imposed for each qualifying felony count;

additionally, this court held as much in, inter alia, Walton v. State, 106 So. 3d 522

(Fla 1st DCA 2013), review granted, 123 So. 3d 1148 (Fla. 2013), and Jackson v.

State, 157 So. 3d 539 (Fla. 1st DCA 2015). Consequently, we affirm the lower

court’s order imposing consecutive mandatory minimum sentences, subject to the

aforementioned correction in the sentence for aggravated battery.

AFFIRMED in part, REVERSED in part, and REMANDED for

resentencing.

MARSTILLER and KELSEY, JJ., CONCUR.

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