final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Duval County. Bruce R.
Anderson, Jr., Judge.
Garfield Plummer, pro se, Appellant.
Jo Bondi, Attorney General, and Jason W. Rodriguez, Assistant
Attorney General, Tallahassee, for Appellee.
Garfield Plummer, appeals the denial of his motion to correct
illegal sentence pursuant to rule 3.800(a), Florida Rules of
Criminal Procedure. Appellant seeks relief for two
consecutively-imposed mandatory minimum sentences. The State
initially conceded error but then filed supplemental
authority which we analyze below. We find the initial
concession of error to be correct, and therefore reverse and
remand for resentencing.
entered an open plea to the information which charged him
with actual possession of a firearm by a convicted felon and
armed robbery of two different victims, all during one
criminal episode. The information did not allege that
Appellant discharged the firearm. See Bienaime v.
State, 213 So.3d 927, 929 (Fla. 4th DCA 2017) (requiring
the State "to allege grounds for enhancement in the
charging document" in order to pursue "an enhanced
mandatory sentence" under the 10-20-Life statutes). The
court accepted Appellant's open plea and applied section
775.087(2), Florida Statutes (2010), part of the 10-20-Life
law which imposes mandatory minimum sentences.
possession of a firearm by a convicted felon, the trial court
sentenced Appellant to five years' imprisonment, with
three years' mandatory minimum. For the armed robberies,
the court imposed two terms of ten years' imprisonment,
with ten years' mandatory minimum. The court imposed the
robbery sentences concurrently to each other, but
consecutively imposed the sentence for the firearm
possession. Thus, the three-year mandatory minimum sentence
was consecutive to the ten-year mandatory minimum sentences.
Appellant did not take a direct appeal, his convictions
became final on September 24, 2010. As explained in
Lanham v. State, 60 So.3d 532 (Fla. 1st DCA 2011),
at the time Appellant was sentenced, the decisional law in
this court was that consecutive mandatory minimum sentences
were impermissible when a defendant displayed a firearm but
did not discharge it while robbing multiple victims. See
also Perry v. State, 973 So.2d 1289 (Fla. 4th DCA 2008);
Irizarry v. State, 946 So.2d 555 (Fla. 5th DCA 2006)
(prohibiting consecutive mandatory minimum sentences for the
same criminal episode where the firearm was not
January 2012, Appellant filed a motion under rule 3.850,
Florida Rules of Criminal Procedure. One of his claims was
that counsel had acted ineffectively by failing to challenge
the consecutive mandatory minimum sentences. While the motion
was pending in the trial court, this court receded from
Lanham in Walton v. State, 106 So.3d 522
(Fla. 1st DCA 2013) (en banc) (Walton I). In
Walton I, we concluded that section 775.087(2)
required the imposition of consecutive mandatory minimum
sentences, even without the discharge of a firearm.
Consequently, the trial court denied Appellant's rule
3.850 motion, and we affirmed the denial on appeal. See
Plummer v. State, 150 So.3d 1139 (Fla. 1st DCA 2014).
in Williams v. State, 186 So.3d 989 (Fla. 2016), the
supreme court explained that where offenses arise in the same
criminal episode and the firearm is possessed but not
discharged, mandatory minimum sentences should not be
consecutively imposed. Williams did allow trial
courts to exercise discretion in imposing either concurrent
or consecutive sentences where, unlike here, a firearm was
its decision in Williams, the Florida Supreme Court
quashed this court's Walton I decision in
Walton v. State, 208 So.3d 60 (Fla. 2016)
(Walton II). In Walton II, the court noted
its opinion in Williams, where it stated that a
consecutive mandatory minimum sentence under section
775.087(2) "'is impermissible if the offenses arose
from the same criminal episode and a firearm was merely
possessed but not discharged.'" Walton II,
208 So.3d at 64 (quoting Williams, 186 So.3d at
993). See also Gartman v. State, 197 So.3d 1181
(Fla. 1st DCA 2016) (reversing, based on Williams,
consecutive mandatory minimum sentences for armed robbery and
possession of a firearm by a convicted felon where no
discharge of the firearm occurred).
days of the issuance of Williams, Appellant filed
his rule 3.800(a) motion asserting that the consecutive
mandatory minimum sentences he received were illegal. In June
2017, the trial court determined that Williams
controlled the issue. The trial court then conducted a
retroactivity analysis, concluded Williams did not
apply retroactively, and denied Appellant's rule 3.800(a)
the motion. The court did not consider Walton II in
then brought this appeal. After first conceding error, the
State then filed Osei v. State, 226 So.3d 1077 (Fla.
1st DCA 2017), as supplemental authority. In Osei,
we concluded that Williams did not apply
retroactively to cases that were final when Williams
was decided. Accordingly, we affirmed the denial of the
postconviction relief under ...