       Third District Court of Appeal
                               State of Florida

                        Opinion filed September 10, 2014.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                              No. 3D13-197
                            Lower Tribunal Nos.
             11-29078A, 11-19137, 11-19136, 11-19134, 09-17826
                            ________________


                            The State of Florida,
                                    Appellant,

                                        vs.

                                Graylin Kelly,
                                    Appellee.



      An Appeal from the Circuit Court for Miami-Dade County, Leon M. Firtel,
Judge.

     Pamela Jo Bondi, Attorney General, and Joanne Diez, Assistant Attorney
General, for appellant.

     Carlos J. Martinez, Public Defender, and James Moody, Assistant Public
Defender, for appellee.

Before WELLS, EMAS and SCALES, JJ.

                            CORRECTED OPINION
      WELLS, Judge.

      We withdraw the opinion issued on May 21, 2014, and substitute the

following corrected opinion in its place.

      The State of Florida appeals from a thirty year suspended sentence imposed

following an open plea of guilty to four separate armed robberies, each of which

carries a minimum mandatory sentence. Because the sentence imposed is illegal,

we reverse and remand to allow the defendant to withdraw his plea and/or to be

resentenced.

      While on probation for grand theft of a vehicle in case number F09-17826,

Graylin Kelly was arrested for and charged with having committed seventeen

separate robberies with a firearm. Nine of these charges were prosecuted by the

United States of America in federal court where a thirty-two year sentence (which

included a minimum mandatory sentence of twenty-seven years) was imposed.

The eight remaining cases were prosecuted in state court, where four were dropped

after Kelly demanded speedy trials.

       On January 14, 2013, the first of these four cases (F11-019136)1 was called

for trial. Following extensive discussions about how to structure a sentence that

1 Kelly was charged in this case with robbing Anne Mompoint on July 15, 2011
with a gun. In F11-019134, Kelly was charged with robbing a store on July 19,
2011 with a gun; in F11-019137, he was charged with robbing Arsay Gonzales on
July 16, 2011 with a gun; and in Fll-029078A, he was charged with robbing a
different store with a gun. Kelly was also charged with displaying a firearm while
committing a felony in this case.

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would run concurrent with Kelly’s federal sentence and that would allow Kelly to

serve all of this sentence in federal prison, the State offered Kelly concurrent

bottom of the guidelines sentences of 13.6 years in each of the four remaining

cases, each with a ten year minimum mandatory, with each sentence to run

concurrent with each other. When Kelly rejected this offer, which in effect would

require that he serve ten years in state prison before beginning to serve his federal

sentence, the State withdrew from negotiations and declared that it was ready for

trial.

         The trial court thereafter, over the State’s objection, offered to impose

concurrent sentences of thirty years in state prison on each of the armed robbery

charges; the court also offered to impose a fifteen year sentence for displaying a

firearm while committing a felony and a five year sentence on the probation

violation charge in case F09-17826 with all sentences to run concurrent. The court

advised that it intended to suspend all of these sentences so that Kelly’s state

“sentences” would run concurrent with his federal sentence and that he would

serve all of his sentences in federal prison.

         Kelly then pled guilty to the charges in each of these cases and was

sentenced to a thirty-year suspended sentence for all of the cases pending against

him. The State appeals, claiming the sentence is illegal because a sentence cannot

be suspended where no probation has been imposed. Kelly counters arguing that


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the sentence is legal under Taylor v. State, 710 So. 2d 636 (Fla. 3d DCA 1998),

and its progeny. While we agree with neither position, we nonetheless find that the

sentence imposed is illegal and must therefore be reversed.

      Section 775.087 of the Florida Statutes clearly states that a conviction for

robbery while possessing a firearm carries a ten-year minimum prison sentence, a

sentence which cannot be suspended:

      (2)(a)1. Any person who is convicted of a felony or an attempt to
      commit a felony, regardless of whether the use of a weapon is an
      element of the felony, and the conviction was for . . . Robbery . . . and
      during the commission of the offense, such person actually possessed
      a “firearm” or “destructive device” as those terms are defined in s.
      790.01, shall be sentenced to a minimum term of imprisonment of 10
      years . . . .

             ....

      (b) . . . Notwithstanding s. 948.01, adjudication of guilt or imposition
      of sentence shall not be suspended, deferred, or withheld, and the
      defendant is not eligible for statutory gain-time . . . prior to serving the
      minimum sentence.

§ 775.087(2)(a) 1.c, (b), Fla. Stat. (2014).

      While section 27.366 of the Florida Statutes accords prosecutors with the

discretion to waive imposition of minimum mandatory sentences, such leeway has

not been accorded to the courts. § 27.366, Fla. Stat. (2014) (“It is also the intent of

the Legislature that prosecutors should appropriately exercise their discretion in

those cases in which the offenders’ possession of a firearm is incidental to the

commission of a crime and not used in furtherance of the crime, used in order to

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commit the crime, or used in preparation to commit the crime.”); State v.

Vanderhoff, 14 So. 3d 1185, 1189 (Fla. 5th DCA 2009) (confirming that section

775.087(2) of the Florida Statutes removed most sentencing discretion from the

judicial branch, according only the State Attorney with the discretion to waive a

minimum mandatory sentence); Johnson v. State, 53 So. 3d 360, 362 (Fla. 5th

DCA 2011) (confirming that “the imposition of a mandatory minimum sentence

under section 775.087(2) is a non-discretionary duty of a trial court where the

record reflects that the defendant qualifies for mandatory minimum sentencing”).

      The record in this case is that the State Attorney did not agree to waive the

minimum mandatory sentences that section 775.087(2) required be imposed

following Kelly’s acknowledgement of guilt to commission of four separate

robberies while possessing a firearm. The court below was, therefore, without

authority either to impose any sentence without also imposing the mandated

minimum mandatory sentence required by section 775.087 or to suspend those

sentences.2

      This court’s decision in Taylor and the decisions in Glenn v. State, 776 So.

2d 330 (Fla. 4th DCA 2001), Davis v. State, 852 So. 2d 355 (Fla. 5th DCA 2003),

Sadler v. State, 980 So. 2d 567 (Fla. 5th DCA 2008), and Rodgers v. State, 76 So.


2 We also note that the court’s decision to suspend the sentences constituted a
downward departure sentence for which no valid justification was provided. State
v. Brannum, 876 So. 2d 724, 725 n.1 (Fla. 5th DCA 2004).

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3d 349 (Fla. 3d DCA 2011), relied on by Kelly in his brief, have no bearing on this

determination. In Taylor, this court utilized an exception to the general rule that a

sentence may be suspended only as an incident to probation, which exception

applies where extraordinary circumstances exist. See Taylor, 710 So. 2d at 637

(citing Helton v. State, 106 So. 2d 79 (Fla. 1958)); see also State v. Mazza, 948 So.

2d 872, 874 (Fla. 4th DCA 2007) (“Since at least 1941, a trial court has lacked

authority to suspend or withhold indefinitely the imposition of sentence upon a

convicted defendant except as an incident to probation under the provisions of

Chapter 948, Florida Statutes.”). However, in doing so we noted that “all parties to

the appellant’s entry of a guilty plea [understood] that he would serve the agreed

seven year sentence in federal prison concurrent to a longer federal sentence.”

Taylor, 710 So. 2d at 637. Similar understandings were reached by “all” parties in

Glenn and Sadler. There was no such understanding amongst all of the parties in

this case because the State—the only entity that could waive the minimum

mandatory sentences—refused to agree to it. And while the decisions in Davis and

Rodgers suggest that no plea agreements with the State were involved, from the

sentences involved (five years for grand theft of a motor vehicle in Davis and a

three year sentence in Rodgers) it appears that no minimum mandatory sentences

had to be imposed. In sum, not one of these decisions suggests, much less holds,

that where an open plea is entered on a charge which carries a minimum


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mandatory sentence that a trial court may unilaterally waive that sentence and/or

suspend it.

      Thus, because the sentence imposed below is illegal, it must be reversed.

Nevertheless, because “Florida Rule of Criminal Procedure 3.172(c)(1) requires

that the trial judge determine that a defendant understands the reasonable

consequences of the plea, including ‘the maximum possible penalty, and any

mandatory minimum penalty provided by law,’” Kelly should be allowed to

withdraw his plea on remand if he so chooses. Vanderhoff, 14 So. 3d at 1189

(quoting Fla. R. Civ. P. 3.172(c)(1)). Accordingly, the sentences imposed in this

case are reversed and the matter remanded for further proceedings consistent with

this opinion.

      Reversed and remanded.




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