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Florida Third District Court Of Appeal – Criminal Headnotes – July 5, 2017

LINAKER CHARLEMAGNE V. STATE OF FLORIDA – ON REMAND FROM SUPREME COURT – CONCURRENT VERSUS CONSECUTIVE SENTENCING – “10-20-LIFE” STATUTE – FIREARM DISCHARGED, MULTIPLE VICTIMS

On remand from the Florida Supreme Court, which had quashed the Third District Court of Appeal’s earlier decision. The appeals court had vacated the trial court’s order that the life sentences for first-degree murder and attempted first-degree murder with a firearm be served concurrently rather than consecutively. In doing so, the Third District Court of Appeal relied on precedents from two other district appeals courts, Walton v. State, 106 So. 3d 522 (Fla. 1st DCA 2013), and Williams v. State, 125 So. 3d 879 (Fla. 4th DCA 2013), each of which held that the “10-20-Life” statute, section 775.087(2)(a) of the Florida statutes, not only permits but requires consecutive sentencing for multiple firearm offenses occurring in a single episode, where the firearm is actually discharged.

The Florida Supreme Court quashed both those opinions in 2016, in Walton v. State and Williams v. State, and remanded the present case for reconsideration in light of those two decisions. In Williams, the Florida Supreme Court clarified its 2005 decision in State v. Sousa, 903 So. 2d 923 (Fla. 2005), which confirmed that the “10-20-Life” statute permits consecutive sentences where a firearm was discharged more than once toward more than one victim. The Sousa court expressly disapproved the 2002 decision of the Third District Court of Appeal in Mondesir v. State, 814 So. 2d 1172 (Fla. 3d DCA 2002), which had construed the statutory requirement that sentencing for enumerated firearms offenses be consecutive with sentencing for “other” felonies as not permitting stacking of sentences for firearms offenses arising from a single.

The Williams court said that while in general “consecutive sentencing for mandatory minimum imprisonment terms for multiple firearm offenses is impermissible absent express statutory authority if the offenses arose from the same criminal episode,” see, Palmer v. State, 438 So. 2d 1 (Fla. 1983), and while the “10-20-Life” statute does not permit consecutive sentencing where the firearm was not actually discharged, the statute does permit the trial court to impose consecutive sentences where “multiple victims were shot at.” On remand, the appeals court noted Williams permits but does not require consecutive sentencing, and allowed the concurrent sentences to stand.

In this case the Third District Court of Appeal ultimately affirmed the original convictions and the trial court’s originally imposed sentence of the twenty-five year mandatory minimum sentence on each count to be served concurrently.