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Billups v. State

Florida Court of Appeals, Fourth District

June 27, 2018

WYLIE BILLUPS, 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; John S. Kastrenakes, Judge; L.T. Case No. 50-2008-CF-011478-AXXX-MB.

          Antony P. Ryan, Regional Counsel, and Paul O'Neil, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.

          Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Senior Assistant Attorney General, West Palm Beach, for appellee.

          Gross, J.

         This case is the story of what can happen when words in a case become detached from a legal principle, to float freely in the ether of Westlaw or Lexis like free radicals ready to trigger mutations in the law. Here we return such free floating words to their original meaning and affirm the sentences under review.

         After a trial, appellant was convicted of four felonies: (1) Robbery with a firearm; (2) robbery with a firearm; (3) aggravated assault with a firearm; and (4) felon in possession of a firearm.

His original sentences were:
Count I: robbery with a firearm, 30 years in prison, 10 year mandatory minimum;
Count II: robbery with a firearm, 30 years in prison, 10 year mandatory minimum;
Count III: aggravated assault with a firearm, 5 years in prison, 3 year mandatory minimum, and
Count IV: felon in possession of a firearm, 15 years in prison, 3 year mandatory minimum.

         Counts I, II, and IV were imposed consecutively, including the mandatory minimum provisions. Count III was imposed concurrently to Count I.

         These sentences were the subject of our decision in Billups v. State, 219 So.3d 900 (Fla. 4th DCA 2017). Based on the Supreme Court's decision in Williams v. State, 186 So.3d 989 (Fla. 2016)[1], we held that the imposition of consecutive mandatory minimum sentences under section 775.087(2)(d), Florida Statutes (2008), was improper, because appellant's convictions arose from the same criminal episode and did not involve the discharge of a firearm. Billups, 219 So.3d at 900; see also Walton v. State, 208 So.3d 60, 64 (Fla. 2016). We reversed the sentences and remanded the case to the circuit court for resentencing.

         At the resentencing hearing, appellant argued that the four sentences, in their entirety, had to be run concurrently, not just the mandatory minimum portions of the sentences.

         The circuit judge commented that, from his review of the original sentencing hearing, it was "clear" that the sentencing judge (since retired) intended that appellant serve 75 years in prison. In response to appellant's argument that all sentences had to run concurrently, the judge observed that Florida's policy is not that crimes are "cheaper by the dozen" and that "when you have separate victims the court should be able to impose consecutive sentences."

         The judge resentenced appellant as follows, nunc pro tunc to September 17, 2010:

Count I: 30 years in prison, with a 10 year mandatory minimum;
Count II: 30 years in prison, with a 10 year mandatory minimum, consecutive to Count I;
Count III: 5 years in prison, with a 3 year mandatory minimum, concurrent to Count I;
Count IV: 15 years in prison, with a 3 year mandatory minimum, consecutive to Count II.

         Pursuant to this court's mandate, the court ran all the mandatory minimum portions of the sentences concurrently.

         This sentencing scheme creates two theoretical sentencing gaps in Counts II and IV. For Count II, the 20 year portion of the sentence in excess of the mandatory minimum does not begin to run until the sentence in Count I has been completed. For Count IV, the 12 year portion of the sentence in excess of the mandatory minimum does not begin to run until the 20 year portion of the Count II sentence has been completed. The chart below provides a pictorial representation of the sentences:

Count 1

10 min man

20 years

Count 2

10 min man

- Break in sentence -

20 years

Count 3 Served

3 min man

5 years

Count 4

3 min man

- Break in sentence -

12 years

         Needless to say, appellant would continuously serve his prison sentence until the end of the sentence in Count IV, so the gaps are theoretical only. Appellant would experience the ...


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