Kelly v. State
137 So. 3d 2
| Fla. Dist. Ct. App. | 2014Background
- Appellant was convicted of two counts of aggravated battery, one count of aggravated assault, and one count of possession of a firearm by a convicted felon; verdict found firearm use caused great bodily harm and occurred in the course of the offenses.
- Original sentencing imposed 40 years for the aggravated battery charges (concurrent) and 25-year mandatory minimum under 10-20-Life, plus 20 years for the aggravated assault (concurrent).
- Appellant later moved under Rule 8.800(b)(2) challenging legality of the sentence, arguing the verdict phrasing made some felonies second-degree with a 15-year maximum, and contending the court could not exceed the 25-year minimum
- The trial court found the 40-year total not legally authorized and, relying on Wiley v. State, rejected a 40-year sentence and attempted to structure a new sentence within a 40-year framework.
- On appeal, the First District reviews de novo, and held the trial court erred by increasing the mandatory minimum and by not allowing the original overall term to remain unchanged; the court affirmed the evidenced photographs admission but remanded for resentencing with instructions consistent with its decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Increase of mandatory minimum on resentencing | Appellant argues the 25-year minimum could not be increased. | State contends 10-20-Life allows longer total sentences beyond the minimum. | Reversed: court may not increase the mandatory minimum on resentencing; remanded. |
| Admission of photographs at trial | Objection to photographic evidence should be sustained. | Photographs properly admitted as admissible. | Affirmed in favor of admissibility. |
Key Cases Cited
- Mendenhall v. State, 48 So.3d 740 (Fla.2010) (mandatory minimum beyond 25 years permitted under 10-20-Life)
- Wiley v. State, 125 So.3d 235 (Fla. 4th DCA 2013) (interaction between 10-20-Life minimum and maximum; whether extra sentence requires authorization by law)
- Bernal v. State, 76 So.3d 1112 (Fla. 1st DCA 2011) (restructuring sentence allowed so long as overall term unchanged)
- Rizzo v. State, 430 So.2d 488 (Fla. 1st DCA 1983) (cannot resentence to increase a lawful sentence already being served)
- Macias v. State, 572 So.2d 22 (Fla. 4th DCA 1990) (cannot increase mandatory minimum after sentence imposed)