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Burks v. State

Florida Court of Appeals, Third District

December 13, 2017

Brandon Burks, Appellant,
v.
The State of Florida, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County No. 07-36268B, Jose Fernandez, Judge.

          Brandon Burks, in proper person.

          Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellee.

          Before SUAREZ, LAGOA, and SCALES, JJ.

          LAGOA, J.

         Brandon Burks ("Burks") appeals from the trial court's order denying his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a) and from the trial court's subsequent order denying his motion for rehearing. Notwithstanding Burk's sentence as a prison releasee reoffender under section 775.082(9)(a)(3)(a), Florida Statutes (2007), the trial court had a nondiscretionary duty to sentence Burks to a mandatory minimum term of imprisonment under section 775.087(2)(a)(3), Florida Statutes (2007), and therefore, we reverse.

         I. FACTUAL AND PROCEDURAL HISTORY

         On November 9, 2007, Burks was charged by information with aggravated assault with a firearm, attempted first degree murder with a firearm, and resisting an officer without violence. A jury found Burks guilty on all counts. The jury also made a specific finding that during the commission of the offense of attempted first degree murder with a firearm, Burks possessed a firearm, which he discharged causing great bodily harm.

         The trial court sentenced Burks to a twenty-year minimum mandatory term on the charge of aggravated assault with a firearm, and to a term of 364 days, time served, on the charge of resisting an officer without violence. As to the charge of attempted first degree murder with a firearm, the trial court sentenced Burks to a term of natural life under the Prison Releasee Reoffender ("PRR") statute, specifically section 775.082(9)(a)(3)(a), Florida Statues (2007). Of significance to this appeal, although the jury found that Burks discharged a firearm causing great bodily harm during the commission of the attempted first degree murder, the trial court did not sentence Burks under section 775.087(2)(a)(3), Florida Statutes (2007)-commonly known as the "10/20/Life" statute-which provides that a "convicted person shall be sentenced to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison" when a defendant discharges a firearm inflicting death or great bodily harm during the commission or attempted commission of enumerated felonies. With regard to its unwillingness to impose a mandatory minimum sentence under section 775.087(2)(a)(3), the trial court stated:

He is serving life with no possibility of parole; so there is no reason at this point to impose that. For some reason it comes back on appeal as to P.R.R. ot [sic] being valid, then obviously, we will look at the 25 min. mand. to possibly life at 10, 20.

         This Court affirmed Burks's convictions and sentences on direct appeal. Burks v. State, 57 So.3d 972 (Fla. 3d DCA 2011).

         In October 2016, Burks filed the instant 3.800(a) motion arguing that his sentence on the attempted first degree murder with a firearm conviction was illegal because the trial court failed to impose the statutory twenty-five year mandatory minimum sentence for discharging a firearm causing great bodily harm pursuant to section 775.087(2)(a)(3).[1] The State filed a response, acknowledging that the imposition of a "concurrent twenty-five (25) year sentence under F.S. 775.087 . . . would have been proper, " but asserting that Burks's sentence was not illegal because his mandatory life sentence was "proper on the case of the record." The trial court denied Burks's motion, concluding that because Burks's sentence of life imprisonment as a prison releasee reoffender did not exceed the statutory maximum authorized by law, it was legal on its face. The trial court subsequently denied Burks's motion for rehearing, and this timely appeal ensued.

         II. STAND ...


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