Opinion
No. 3D19-1618
10-23-2019
Brandon BURKS, Appellant, v. The STATE of Florida, Appellee.
Brandon Burks, in proper person. Ashley Moody, Attorney General, for appellee.
Brandon Burks, in proper person.
Ashley Moody, Attorney General, for appellee.
Before EMAS, C.J., and FERNANDEZ, and MILLER, JJ.
MILLER, J.
Appellant, Brandon Burks, challenges the denial of his motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800. On appeal, Burks contends the imposition of a previously omitted minimum mandatory sentence by the lower tribunal, following our remand in Burks v. State, 237 So. 3d 1060 (Fla. 3d DCA 2017) (" Burks II"), is violative of double jeopardy principles. For the reasons set forth below, we disagree and affirm.
Following a jury trial, Burks was convicted of attempted first-degree murder with a firearm in violation of sections 775.087, 777.04(1), and 782.04(1)(a), Florida Statutes, aggravated assault with a firearm in violation of sections 784.021(1)(a) and 775.087, Florida Statutes, and resisting an officer without violence in violation of section 843.02, Florida Statutes. The jury specifically found that during the commission of the offense of attempted first-degree murder, Burks possessed a firearm, which he discharged, inflicting great bodily harm.
The trial court sentenced Burks to a term of life imprisonment on the attempted first-degree murder count as a prison releasee reoffender ("PRR"), pursuant to section 775.082(9)(a)(3)(a), Florida Statutes. The court declined to impose a further nondiscretionary minimum mandatory required under section 775.087(2)(a)(3), Florida Statutes, "commonly known as the ‘10-20-Life’ statute," finding an additional, concurrent term to be redundant. Mendenhall v. State, 48 So. 3d 740, 742 (Fla. 2010) (citation omitted).
This court subsequently affirmed Burks' convictions and sentences on direct appeal. See Burks v. State, 57 So. 3d 972 (Fla. 3d DCA 2011) (" Burks I"). Burks then sought to correct his sentence, through Florida Rule of Criminal Procedure 3.800, contending that the trial court erred in failing to impose the 10-20-Life minimum mandatory. This Court agreed and remanded the case to the lower tribunal for resentencing. See Burks II.
Pursuant to our mandate, the lower tribunal imposed an additional 25-year minimum mandatory under the 10-20-Life statute, to run concurrent with the PRR term of life imprisonment. Burks filed a further motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800, contending the newly imposed sentence was violative of double jeopardy. The trial court denied relief. The instant appeal ensued.
STANDARD OF REVIEW
As "[t]he error to be corrected in a rule 3.800(a) motion must be apparent from the face of the record," the court "is presented with pure issues of law on appeal, and applies the de novo standard of review." Williams v. State, 235 So. 3d 962, 963 (Fla. 5th DCA 2017).
LEGAL ANALYSIS
"No person shall ... be subject for the same [offense] to be twice put in jeopardy of life or limb." Amend. V, U.S. Const. Nonetheless, "[a]s it relates to barring multiple punishments for the same offense in the noncapital sentencing context, ... the later imposition of more onerous terms ‘violates the double jeopardy clause only when it disrupts the defendant's legitimate expectations of finality.’ " Dunbar v. State, 89 So. 3d 901, 904-05 (Fla. 2012) (citation omitted). Thus, "[i]t does not offend double jeopardy principles to resentence a defendant to harsher terms when the original sentence was invalid, particularly when ... it is the defendant who brings his sentence into question." Allen v. State, 853 So. 2d 533, 536 (Fla. 5th DCA 2003) (citations omitted); see Clark v. State, 72 So. 3d 222, 226, n.2 (Fla. 2d DCA 2011) ("Once a sentence has already been served , even if it is an illegal sentence or an invalid sentence, the trial court loses jurisdiction and violates the Double Jeopardy Clause by reasserting jurisdiction and resentencing the defendant to an increased sentence.") (quoting Maybin v. State, 884 So. 2d 1174, 1175 (Fla. 2d DCA 2004) ). Here, this Court determined the original sentence was illegal, at Burks's insistence, as it excluded a requisite minimum mandatory. Under these circumstances, Burks "had no expectation of finality regarding his sentence where he opened the door to the district court's appellate jurisdiction on an issue of law that was clarified while his case was pending." Harris v. State, 645 So. 2d 386, 388 (Fla. 1994). Consequently, and consistent with our remand instructions, the lower tribunal was permitted to "increase or amend the sentence." State v. Jimenez, 173 So. 3d 1020, 1024 (Fla. 3d DCA 2015) ; see also Solomon v. State, 254 So. 3d 1121, 1124 (Fla. 5th DCA 2018) ("[T]he trial court had no discretion but to impose ten-year minimum mandatory conditions as part of the life sentences imposed on each count. Its failure to do so makes each sentence illegal under this rule, and those sentencing errors can be remedied without violating double jeopardy principles, even though [the defendant] has already been serving his sentences.") (citing Vargas v. State, 188 So. 3d 915, 916 (Fla. 5th DCA 2016) ; Dunbar, 89 So. 3d at 906-07 ). Accordingly, we affirm the denial of relief.
Affirmed.