Summary
holding that consecutive sentences were improper for convictions of attempted armed robbery and aggravated battery because the two offenses arose from the same criminal episode and jury found that appellant only possessed, as opposed to discharged, a firearm
Summary of this case from Bonner v. StateOpinion
CASE NO. 1D16–1255
02-07-2017
Jakari Okalawon CLARK, Appellant, v. STATE of Florida, Appellee.
Andy Thomas, Public Defender, and David A. Henson, Assistant Public Defender, Tallahassee, for Appellant. Pamela Jo Bondi, Attorney General, and Tayo Popoola, Assistant Attorney General, Tallahassee, for Appellee.
Andy Thomas, Public Defender, and David A. Henson, Assistant Public Defender, Tallahassee, for Appellant.
Pamela Jo Bondi, Attorney General, and Tayo Popoola, Assistant Attorney General, Tallahassee, for Appellee.
BILBREY, J.
Appellant Jakari Clark was convicted of attempted armed robbery and aggravated battery. With respect to both offenses, the jury found that Appellant actually possessed a firearm. But as to the attempted armed robbery count, the jury found that Appellant did not discharge the firearm. For each offense, Appellant was sentenced to fifteen years imprisonment with a mandatory minimum term of ten years for possession of a firearm; the trial court ordered the sentences to be served consecutively. We affirm Appellant's conviction, but for the reasons set forth below, we vacate the sentences and remand for resentencing.
Appellant argues the trial court erred in denying his objection and motion to strike a portion of the testimony of a police officer who was asked during redirect examination whether Appellant made any statement when police arrived at the crime scene. Appellant has maintained that the question and response was an improper comment on Appellant's right to remain silent. However, reading the testimony of the officer in its entirety, it is plain that the redirect examination was invited by Appellant's cross-examination which opened the door regarding Appellant's comments, or lack thereof, to law enforcement.
Appellant is correct, as the State concedes, that the consecutive sentences are improper here. As the Florida Supreme Court has explained, "consecutive sentencing of mandatory minimum imprisonment terms for multiple firearm offenses is impermissible if the offenses arose from the same criminal episode and a firearm was merely possessed but not discharged." Williams v. State , 186 So.3d 989, 993 (Fla. 2016). The two offenses for which Appellant was convicted arose from the same criminal episode, and as noted, the jury specifically found that Appellant possessed, as opposed to discharged, a firearm. See Mobley v. State , 197 So.3d 648 (Fla. 1st DCA 2016). Accordingly, we AFFIRM the convictions, but we VACATE the sentences and REMAND for resentencing. See Gartman v. State , 197 So.3d 1181 (Fla. 1st DCA 2016).
OSTERHAUS and WINOKUR, JJ., CONCUR.