Summary
holding that Boler controls where a defendant is convicted of felony murder and the underlying crime involved the same victim, therefore, the trial court could not impose the 3-year minimum mandatory for possession of a firearm consecutively to the 25-year sentence for felony murder
Summary of this case from Parkes v. StateOpinion
No. 1D09-0423.
June 3, 2009.
Appeal from the Circuit Court for Escambia County, Jan Shackelford, J.
James L. Hall, pro se, for Appellant.
Bill McCollum, Attorney General, Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
Appellant challenges the denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). For the reasons discussed below, we reverse.
The appellant was convicted of first-degree felony murder (count one) and robbery with a firearm (count two). He was sentenced to life in prison without parole for twenty five years on count one and ten years' imprisonment with a minimum mandatory sentence of three years for count two. The sentences were ordered to run consecutively.
In his motion to correct illegal sentence, the appellant asserts that his consecutive minimum mandatory sentences for counts one and two are illegal because the crimes arose from a single criminal episode. In Boler v. State, 678 So.2d 319 (Fla. 1996), a defendant was convicted of first-degree felony murder and robbery (the underlying felony) for killing a convenience store clerk during an armed robbery. The defendant was sentenced to life imprisonment with a twenty five year minimum mandatory for first-degree murder. Id. at 322. He was given a consecutive life sentence for the robbery, which included a three year minimum mandatory for the use of a firearm. Id. The Court held that the three year minimum mandatory sentence for the underlying robbery could not be imposed consecutively to the twenty five year minimum mandatory for felony murder. Id. at 323.
He asserts that the robbery was the underlying felony supporting the felony murder conviction.
Boler is directly on point with this case. Here, the appellant alleges that he was also convicted of felony murder and the underlying robbery involving the same victim. Therefore, the trial court could not impose the three year minimum mandatory for possession of a firearm consecutively to appellant's twenty five year minimum sentence for felony murder. We reverse and remand with directions that the trial court impose the twenty five year and three year minimum mandatory sentences to run concurrently or attach portions of the record indicating that the felony murder and robbery convictions did not arise from a single criminal episode.
REVERSED AND REMANDED.
BARFIELD, PADOVANO, and LEWIS, JJ., concur.