Ricardo L. Whyms v. State of Florida

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT

RICARDO L. WHYMS,
Appellant,

v.

STATE OF FLORIDA,
Appellee.

No. 4D15-3473

[February 17, 2016]

Appeal of order denying rule 3.800 motion from the Circuit Court for
the Seventeenth Judicial Circuit, Broward County; Edward H. Merrigan,
Jr., Judge; L.T. Case No. 01-16528 CF10A.

Ricardo L. Whyms, Okeechobee, pro se.

No appearance required for appellee.

PER CURIAM.

Ricardo L. Whyms appeals an order denying his rule 3.800(a) motion to
correct illegal sentence. We affirm but for reasons other than those given
by the trial court.

In 2003, Whyms entered a negotiated plea to robbery with a firearm.
Pursuant to the terms of the agreement, Whyms was sentenced to a
ten-year mandatory minimum under the 10-20-Life law1 consecutive to
any active sentence. In the present motion, Whyms contends that the
mandatory minimum is illegal because the judge did not orally pronounce
it.

The trial court denied the motion attaching the State’s response, which
argued that the motion repeated a claim that was denied in a prior motion
and affirmed on appeal by this Court in Whyms v. State, 158 So. 3d 600
(Fla. 4th DCA 2015) (4D14-3888) (table). The prior motion attached by the
State, however, did not raise the present claim regarding the mandatory
minimum sentence. The claim was not shown to be barred by the doctrine

1 § 775.087(2), Fla. Stat. (2000).
of collateral estoppel. State v. McBride, 848 So. 2d 287, 291 (Fla. 2003).

We nevertheless affirm because Whyms’ claim is frivolous. The
transcript of the plea hearing and sentence are in the record and make
absolutely clear that the court imposed the agreed-upon ten-year
mandatory minimum sentence. Whyms contends that the mandatory
minimum was not orally pronounced because the judge did not expressly
say so at the precise moment the judge announced the sentence. The
record, however, is crystal clear that the judge imposed the sentence as
provided for in the plea agreement.

In addition to being factually refuted by the record, the claim lacks
merit as a matter of law. Whyms cites to Ashley v. State, 850 So. 2d 1265,
1267 (Fla. 2003), which stands for the proposition that “[o]nce a sentence
has been imposed and the person begins to serve the sentence, that
sentence may not be increased without running afoul of double jeopardy
principles.” Ashley is inapplicable under the circumstances.

In Dunbar v. State, 89 So. 3d 901 (Fla. 2012), the trial court failed to
orally pronounce a mandatory minimum required by law. Later that day,
the court added the mandatory minimum to the written sentence. Id. at
903. The Florida Supreme Court rejected the notion that double jeopardy
precluded addition of the mandatory minimum because, in these
circumstances, the defendant had no legitimate expectation of finality in
the orally pronounced sentence. Id. at 906. The same rationale applies
here.

Whyms filed this motion twelve years after his negotiated plea. Our
records show that Whyms has filed other meritless postconviction motions
and appeals. We caution Whyms that frivolous postconviction filing will
not be tolerated and may result in sanctions and referral to prison officials.
See State v. Spencer, 751 So. 2d 47 (Fla. 1999); see also § 944.279(1), Fla.
Stat. (2015).

Affirmed. Appellant warned against frivolous filing.

WARNER, STEVENSON and KLINGENSMITH, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.

2