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Burks v. State

Florida Court of Appeals, Third District

October 23, 2019

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, Lower Tribunal No. 07-36268B Jose L. Fernandez, Judge.

          Brandon Burks, in proper person.

          Ashley Moody, Attorney General, for appellee.

          Before EMAS, C.J., and FERNANDEZ, and MILLER, JJ.

          MILLER, J.

         Appellant, Brandon Burks, challenges the denial of his motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800. On appeal, Burks contends the imposition of a previously omitted minimum mandatory sentence by the lower tribunal, following our remand in Burks v. State, 237 So.3d 1060 (Fla. 3d DCA 2017) ("Burks II"), is violative of double jeopardy principles. For the reasons set forth below, we disagree and affirm.

         Following a jury trial, Burks was convicted of attempted first-degree murder with a firearm in violation of sections 775.087, 777.04(1), and 782.04(1)(a), Florida Statutes, aggravated assault with a firearm in violation of sections 784.021(1)(a) and 775.087, Florida Statutes, and resisting an officer without violence in violation of section 843.02, Florida Statutes. The jury specifically found that during the commission of the offense of attempted first-degree murder, Burks possessed a firearm, which he discharged, inflicting great bodily harm.

         The trial court sentenced Burks to a term of life imprisonment on the attempted first-degree murder count as a prison releasee reoffender ("PRR"), pursuant to section 775.082(9)(a)(3)(a), Florida Statutes. The court declined to impose a further nondiscretionary minimum mandatory required under section 775087(2)(a)(3), Florida Statutes, "commonly known as the '10-20-Life' statute," finding an additional, concurrent term to be redundant. Mendenhall v. State, 48 So.3d 740, 742 (Fla. 2010) (citation omitted).

         This court subsequently affirmed Burk's convictions and sentences on direct appeal. See Burks v. State, 57 So.3d 972 (Fla. 3d DCA 2011) ("Burks I"). Burks then sought to correct his sentence, through Florida Rule of Criminal Procedure 3.800, contending that the trial court erred in failing to impose the 10-20-Life minimum mandatory. This Court agreed and remanded the case to the lower tribunal for resentencing. See Burks II.

         Pursuant to our mandate, the lower tribunal imposed an additional 25-year minimum mandatory under the 10-20-Life statute, to run concurrent with the PRR term of life imprisonment. Burks filed a further motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800, contending the newly imposed sentence was violative of double jeopardy. The trial court denied relief. The instant appeal ensued.

         STANDARD OF REVIEW

         As "[t]he error to be corrected in a rule 3.800(a) motion must be apparent from the face of the record," the court "is presented with pure issues of law on appeal, and applies the de novo standard of review." Williams v. State, 235 So.3d 962, 963 (Fla. 5th DCA 2017).

         LEGAL ...


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