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Wallach v. State

Florida Court of Appeals, Fourth District

April 4, 2018

MICHAEL WALLACH, Appellant,
v.
STATE OF FLORIDA, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Krista Marx, Judge; L.T. Case No. 50-2012-CF-006125-A.

          Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.

          Per Curiam.

         Michael Wallach appeals his seventeen convictions and several of his sentences. We affirm his convictions without further discussion, but reverse five of his sentences and remand for resentencing.

         First, the defendant argues that some of his sentences were orally pronounced to be concurrent with other sentences, but that the written sentences were imposed to run consecutively. The State concedes that the sentences imposed on the following counts should be reversed:

Count

Crime

Oral pronouncement

Written Sentence

11

Aggravated Assault with a Firearm on a LEO

20 years - concurrent with any other sentence

20 yrs.-consecutive

15

Aggravated Assault with a Firearm

20 years - concurrent with any other sentence

20 yrs.-consecutive

16-17

Grand Theft (Motor Vehicle and Firearm)

1345 months - concurrent with any other sentence

1345 months -consecutive

         The State's concession of error is well-taken. See Ashley v. State, 850 So.2d 1265, 1268 (Fla. 2003) ("[A] court's oral pronouncement of sentence controls over the written document."). On remand, the sentences imposed on Counts 11, 15, 16, and 17 should be corrected so the written sentence matches the court's oral pronouncement.

         Next, the defendant appeals the minimum-mandatory sentence imposed on Count 10:

Count

Crime per Information

Min.-Man. Imposed

10

Burglary while armed with a firearm

10 years

         Wallach was convicted of burglarizing a conveyance (a car) while armed with a dangerous weapon. This is a felony of the first degree. § 810.02(2)(b), Fla. Stat. (2012). The State argues that the ten-year mandatory minimum sentence imposed is legal because the defendant was armed with a firearm and his sentence was enhanced under the 10-20-Life statute. See § 775.087(2)(a)1., Fla. Stat. (2012) While burglary is one of the enumerated felonies under the statute, if a defendant is convicted of burglary of a conveyance, the minimum mandatory sentence under 10-20-Life is three years, not ten years. Id.; see Figueroa-Montalvo v. State, 10 So.3d 173, 174-75 (Fla. 5th DCA 2009) ("The crime of burglary of a conveyance is ... listed as one of the charges to which the three-year mandatory minimum applies.). Because the 10-20-Life statute imposes only a three-year minimum mandatory sentence for the crime of burglary of a conveyance, the ten-year minimum mandatory sentence enhancement imposed here is illegal.

         Finally, the defendant appeals the length of the sentence imposed on Count 15:

Count

Crime per Information

Sentence imposed

15

Aggravated Assault with a Firearm

20 years


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