final until disposition of timely filed motion for rehearing.
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.
Jo Bondi, Attorney General, and Douglas J. Glaid, Senior
Assistant Attorney General, for appellee.
SUAREZ, LAGOA, and SCALES, JJ.
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.
FACTUAL AND PROCEDURAL HISTORY
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
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.
Court affirmed Burks's convictions and sentences on
direct appeal. Burks v. State, 57 So.3d 972
(Fla. 3d DCA 2011).
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). 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.