DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
MICHAEL A. MITCHELL,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D20-860
[October 21, 2020]
Appeal of order denying rule 3.800 motion from the Circuit Court for
the Fifteenth Judicial Circuit, Palm Beach County; Caroline C. Shepherd,
Judge; L.T. Case No. 501996CF009161B.
Michael A. Mitchell, Daytona Beach, pro se.
No appearance required for appellee.
ON APPELLANT’S MOTION FOR WRITTEN OPINION
GERBER, J.
We grant appellant’s motion for written opinion, withdraw our per
curiam affirmance issued without opinion on July 15, 2020, and
substitute the following written opinion in its place.
The defendant appeals from the circuit court’s order dismissing as moot
his Florida Rule of Criminal Procedure 3.800 motion to correct illegal
sentence. He argues the circuit court should have imposed the applicable
mandatory minimum on his life sentences for two counts of attempted
first-degree murder, essentially asking for a harsher sentence than what
he received. Although the circuit court recognized the defendant’s
argument was correct, the court dismissed his motion as moot because he
has already served longer than the applicable mandatory minimum.
We agree with the circuit court and affirm. However, because two of
our sister courts have held an illegal sentence should be corrected at any
time, even when the illegality works in the defendant’s favor, we write to
explain our reasoning and certify conflict.
The state charged the defendant by amended information with two
counts of attempted first-degree murder with a firearm (counts I and II),
robbery with a firearm (count V), and grand theft of a motor vehicle (count
VI). A jury found the defendant guilty as charged on counts I, II, and V,
and not guilty on count VI.
The circuit court sentenced the defendant to life in prison for both
counts of attempted first-degree murder, and twenty-three years in prison
for robbery with a firearm, to run concurrently. We affirmed the
defendant’s conviction and sentence on direct appeal. Mitchell v. State,
734 So. 2d 450 (Fla. 4th DCA 1999).
The defendant has filed several postconviction motions, some of which
have been successful. The circuit court ultimately resentenced the
defendant to fifteen years in prison for robbery with a firearm. His life
sentences for attempted first-degree murder remained intact.
On February 19, 2019, the defendant filed the instant motion to correct
illegal sentence, arguing the trial court should have imposed an applicable
mandatory minimum for each attempted first-degree murder conviction.
In response, the state conceded the trial court should have imposed the
applicable mandatory minimum. The state suggested granting relief and
correcting the defendant’s sentence to include the applicable mandatory
minimum, noting the correction was ministerial and would not require de
novo resentencing.
The circuit court dismissed the defendant’s motion as moot. The circuit
court found that imposing an applicable mandatory minimum on
resentencing would have no effect on the defendant’s sentence, because
he has already served more than the applicable mandatory minimum on
both attempted first-degree murder convictions. Further, the circuit court
found the applicable mandatory minimum would have no effect on gain
time because the defendant is serving a life sentence without the
possibility of parole.
This appeal followed. The defendant argues he is entitled to
resentencing because the circuit court failed to impose the non-
discretionary applicable mandatory minimum for each attempted first-
degree murder conviction.
We agree with the defendant that section 775.087(3)(a), Florida
Statutes, required the circuit court to impose the applicable mandatory
minimum on each attempted first-degree murder conviction because the
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jury found the defendant possessed a semiautomatic firearm during the
commission of the offense. See State v. Iseley, 944 So. 2d 227, 230-31
(Fla. 2006) (the application of the mandatory minimum sentence penalty
in section 775.087(2)(a) must be predicated upon a “clear jury finding” that
the defendant possessed a firearm during the commission of the felony,
which can be demonstrated either by (1) a specific question or special
verdict form, or (2) the inclusion of a reference to a firearm in identifying
the specific crime for which the defendant is found guilty). The verdict
form specifically referenced the defendant’s use of the semiautomatic
firearm. Accordingly, there was a “clear jury finding” sufficient to impose
the applicable mandatory minimum under section 775.087(3)(a).
However, the First District has held that although a sentence is
technically illegal when a court fails to impose the applicable mandatory
minimum, the illegality is in the defendant’s favor and may not be
challenged. Earl v. State, 276 So. 3d 359, 361 (Fla. 1st DCA 2019). The
First District reasoned:
While a sentence that fails to impose a mandatory
minimum sentence may be “illegal,” that illegality is in
appellant’s favor. It is not adverse to [the appellant]. “The
general rule on appeal to review proceedings of an inferior
court is that a party to the cause may appeal only from a
decision in some respect adverse to [that party].” Credit Indus.
Co. v. Remark Chem. Co., 67 So. 2d 540, 541 (Fla. 1953). “A
party may ... appeal when [that party] is ‘aggrieved by the
judgment.’” Fountain v. City of Jacksonville, 447 So. 2d 353,
354 (Fla. 1st DCA 1984).
Specifically, “defendants have the right to appeal an
adverse ruling of a 3.800(a) motion.” Johnson v. State, 961
So. 2d 195, 197 (Fla. 2007) (emphasis added) (requiring trial
courts to advise defendants of their right to appeal from rule
3.800(a) motions). The appellate rules permit a defendant to
appeal an order “denying relief” under rule 3.800(a). Fla. R.
App. P. 9.140 (b)(1)(D).
Id.
We agree with the First District’s holding and reasoning. The First
District, though, certified conflict with cases from the Fifth District and
the Third District. Id. at 362 (citing Solomon v. State, 254 So. 3d 1121,
1124 (Fla. 5th DCA 2018) (“Although it would seem counterintuitive for a
defendant, postconviction, to move for an enhanced sentence, rule
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3.800(a) provides ... recourse as it plainly states ... that ‘[a] court may at
any time correct an illegal sentence,’” and the failure to impose a
mandatory minimum sentence under the 10-20-Life statutes “makes each
sentence illegal.”); Vargas v. State, 188 So. 3d 915, 916 n.1 (Fla. 5th DCA
2016) (reversing and remanding for resentencing where the trial court
failed to impose mandatory minimum sentences); Burks v. State, 237 So.
3d 1060, 1062 n.1 (Fla. 3d DCA 2017) (reversing and remanding for
resentencing because nothing prohibits a defendant from filing a rule
3.800(a) motion challenging the trial court’s failure to impose a mandatory
minimum sentence under the 10-20-Life statute)).
The Florida Supreme Court recently granted review of the First
District’s holding in Earl. Earl v. State, SC19-1506, 2019 WL 6490732, at
*1 (Fla. Dec. 3, 2019). Based on the pending review of this issue, we have
written this opinion to also certify conflict with Solomon, Vargas, and
Burks, so that our supreme court may review this case based upon its
review of Earl.
Affirmed; conflict certified.
WARNER and FORST, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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