Johnny Barnes v. State

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO
FILE MOTION FOR REHEARING AND
DISPOSITION THEREOF IF FILED

JOHNNY BARNES,

Appellant,

v. Case No. 5D16-1353

STATE OF FLORIDA,

Appellee.

________________________________/

Opinion filed September 7, 2017

Appeal from the Circuit Court
for Orange County,
Timothy R. Shea, Judge.

James S. Purdy, Public Defender, and
Ailene S. Rogers, Assistant Public
Defender, Daytona Beach, for Appellant.

Pamela Jo Bondi, Attorney General,
Tallahassee, and Kellie A. Nielan, Assistant
Attorney General, Daytona Beach, for
Appellee.

ORFINGER, J.

Johnny Barnes, a juvenile at the time of the relevant crimes, appeals his judgments

and sentences for second-degree murder and robbery with a firearm.1 We affirm as to

1 The jury made an additional finding that Barnes possessed and discharged a
firearm resulting in the victim’s death.
all issues, but write to address Barnes’s claim that the trial court erred in considering

convictions for crimes committed subsequent to the crimes in this case to support its

decision to impose a life sentence and to correct a scrivener’s error in the amended

sentencing documents.

Because Barnes was a juvenile at the time he committed these offenses, the trial

court conducted an individualized sentencing hearing pursuant to section 921.1401,

Florida Statutes (2016). At the sentencing hearing, the State filed copies of judgments

and sentences in three other cases for crimes that Barnes committed after he committed

the crimes in this case.2 The State conceded that the subsequent convictions could not

be scored on the Criminal Punishment Code scoresheet, but argued that the court could

consider them in determining whether a life sentence was appropriate. The trial court

considered the subsequent convictions and sentenced Barnes to life in prison for the

second-degree murder and thirty-five years in prison for robbery. The court found that

Barnes was entitled to a judicial review on both convictions after twenty-five years and

that the twenty-five-year mandatory minimum applied to both convictions.

Prior to filing his initial brief, Barnes filed a motion to correct sentencing error

pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), arguing that the trial court

erred in relying on his subsequent convictions in support of the life sentence and in

determining that he was entitled to a judicial review of his thirty-five-year sentence for the

robbery conviction after twenty-five years, instead of twenty years under section

2 These judgments reflect that Barnes was convicted of eight counts of aggravated
battery with a firearm, seven counts of aggravated assault with a firearm, and one count
each of carrying a concealed firearm, battery on a law enforcement officer, and resisting
an officer with violence.

2
See Horsley v. State, 160 So. 3d 393, 397 (Fla. 2015) (citing Miller v. Alabama, 567 U.S.

460, 479-80 (2012)).

However, we agree, and the State concedes, that the amended sentencing

documents contain a scrivener’s error as to the judicial review period for count two, which

should be corrected to conform to the trial court’s written order granting Barnes’s rule

3.800(b)(2) motion. We remand the case to the trial court to correct the scrivener’s error

on the amended sentencing documents dated January 26, 2017. See Taylor v. State,

120 So. 3d 213, 213 (Fla. 5th DCA 2013). Barnes need not be present for entry of the

corrected sentence.

AFFIRMED and REMANDED with instructions.

COHEN, C.J. and BERGER, J., concur.

4
See Horsley v. State, 160 So. 3d 393, 397 (Fla. 2015) (citing Miller v. Alabama, 567 U.S.