FLORIDA SUPREME COURT

No reversals reported.

FIRST DISTRICT COURT OF APPEAL

CLICK TO READ Leigh Felten v. State of Florida, Docket # 1D18-5001

The trial court granted Felten’s request for a mental and competency evaluation, but—as the State concedes—the “record does not show . . . that the trial court held a competency hearing or entered a written order,” thereby necessitating a remand.  The trial court shall either provide the missing competency order, perform a nunc pro tunc competency hearing, or, failing both, conduct a new trial.

Remanded for competency determination.

SECOND DISTRICT COURT OF APPEAL

CLICK TO READ Robert D. Garner v. State of Florida, Docket # 2D19-176

Appeal of an order denying motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850, arguing his sentence was unconstitutional under Miller v. Alabama, 567 U.S. 460 (2012) and Atwell v. State, 197 So. 3d 1040 (Fla. 2016). Relying on these cases, the postconviction court granted his motion in 2016 and ordered a resentencing hearing. The State did not appeal the order.

Two years after, while Defendant was awaiting resentencing, the Florida Supreme Court reversed Atwell, and the State moved for reconsideration.  The court granted the motion and reinstated the original sentence.  The Second DCA reversed and reinstated, holding the trial court lacked jurisdiction to reverse the granting of post-conviction relief.

CLICK TO READ State of Florida v. Brandon Thomas Watlington, Docket # 2D19-3366

State’s appeal of a sentence that afforded Defendant a Youthful Offender sentence after he entered an open plea to Armed Burglary of a Dwelling with an Assault or Battery, Attempted Robbery, Conspiracy to Commit Armed Burglary of a Dwelling with an Assault or Battery.  The State argued that Watlington’s Youthful Offender sentence is illegal because the burglary charge was enhanced to a life felony.

Armed Burglary of a Dwelling with Assault or Battery is a First Degree Felony, but can be reclassified as a Life Felony if a firearm is used under the 10-20-Life Statute.  That offenses is subject to a 25-year mandatory minimum under the 10-20-Life statute based on the allegation that Watlington discharged a firearm causing great bodily harm by shooting the victim in the face.

Appellant entered an open plea and was sentenced as a Youthful Offender to 4 years imprisonment.  The State and defense stated on the record that Appellant was eligible for a Youthful Offender sentence, but the State argued for adult penalties.  After sentencing, the State appealed, arguing that the sentence was illegal.

The Second DCA reversed, finding that the sentence was illegal because the Florida Youthful Offender Act expressly precludes youthful offender sentencing for any “person who has been found guilty of a capital or life felony.” This prohibition includes felonies that have been enhanced to life felonies.

The sentence was reversed and the case remanded to provide Appellant an opportunity to withdraw his plea or resentencing.

THIRD DISTRICT COURT OF APPEAL

CLICK TO READ Ibes Gomez v. State of Florida, Docket # 3D18-1193

Appeal from sentences in 5 separate cases.  Defendant had appealed his sentences several times, resulting in reversals in several sentences and remands from the Third DCA.  Each time, Defendant’s scoresheet changed his sentencing exposure, lowering it.  Each time, the trial court disregarded the instructions from the Third DCA.  For the third time, the Third DCA sent the case back with instructions to vacate two convictions for Grand Theft based upon Double Jeopardy and conduct a full resentencing hearing on the remaining convictions.

FOURTH DISTRICT COURT OF APPEAL

No reversals reported.

FIFTH DISTRICT COURT OF APPEAL

 CLICK TO READ State of Florida v. Terrance Demond Brown, Docket # 5D19-792

State appeal of dismissal of two firearms related charges after a bifurcated trial.  Orders reversed, charges reinstated.

Defendant was charged with Aggravated Assault with a Firearm, Discharge of a Firearm from a Vehicle, and Possession of a Firearm by a Convicted Felon.  With his consent, the charges were severed for trial, and he was tried on the felon-in-possession charge first.  At the first trial, the jury acquitted him.  He then moved to dismiss the other two charges, both of which arose from the same incident, on Double Jeopardy grounds, or in the alternative to preclude any mention that he had a firearm, and the motion was granted and was dismissed.

The Fifth DCA reversed and reinstated, holding Brown’s consent to separate trials obviated any double jeopardy or collateral estoppel concerns.

CLICK TO READ Taquarvis Burton v. State of Florida, Docket # 5D20-1500

Appeal of an order denying a Rule 3.800(a) motion to correct sentence after one of his two convictions was reversed on direct appeal.  Order reversed, remanded for resentencing/

Defendant was originally convicted after trial of Attempted Second Degree Murder with a Firearm and Attempted Robbery with a Firearm and was sentenced to 30 years and 25 years, concurrently.  Both sentences included a 25-year mandatory minimum.  On direct appeal, the conviction for Attempted Second Degree Murder was reversed and remanded for a new trial, but the State dismissed that charge.  Defendant then filed a Rule 3.800(a) motion to correct his sentencing, arguing he should have been resentenced on his attempted robbery with a firearm conviction with a scoresheet that no longer included the sentencing points for the attempted second-degree murder conviction.

The trial court denied the motion, finding that any error in the scoresheet was harmless because he was still subject to the mandatory 25-year minimum.

The Fifth DCA reversed, finding that he was eligible for a Youthful Offender sentence because the minimum mandatory provisions of the 10-20-life statute do not supersede the Youthful Offender sentencing provisions.  Because he was eligible, the Rule 3.800(a) motion should not have been denied, and instead, he should have been considered for a discretionary Youthful Offender sentence. 

Order reversed and remanded for resentencing with a corrected Sentencing Scoresheet where the court shall consider whether to exercise its discretion to resentence Burton as a youthful offender.

ELEVENTH CIRCUIT COURT OF APPEALS

CLICK TO READ United States v. Monty Ray Grow, Docket # 18-11809

Appeal of conviction after trial of Conspiracy to Commit Healthcare Fraud and Wire Fraud, Healthcare Fraud, Conspiracy to Receive and Pay Kickbacks, and Money Laundering.  Defendant was sentenced to a total of 262 months imprisonment, with 20 years on the Conspiracy to Commit Healthcare Fraud and Wire Fraud.  Convictions affirmed, but the 20-year sentence was reversed, and case remanded for resentencing. 

At trial, the jury was instructed if could find Defendant guilty of Conspiracy to Commit Healthcare Fraud, or Conspiracy to Commit Wire Fraud, or both.  20 years was the statutory maximum for Conspiracy to Commit Wire Fraud, but Conspiracy to Commit Healthcare Fraud is only punishable by up to 10 years imprisonment.  The verdict did not specify which count the jury found, and they only returned a general verdict on that count without specifying which conspiracy they found. 

Because the District Court’s sentence exceeded the statutory maximum allowed by the jury’s general verdict on that count, a new sentence was required.