         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                         No. 1D15-5582
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TOLAND JEROME BONNER,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Escambia County.
Ross M. Goodman, Judge.

                          April 5, 2018


PER CURIAM.

     Appellant Toland J. Bonner raises three issues in this
criminal appeal. First, he contends that it was error under
Williams v. State, 186 So. 3d 989 (Fla. 2016), and Gartman v.
State, 197 So. 3d 1181 (Fla. 1st DCA 2016), for his sentences for
robbery with a firearm (Count 1) and attempted robbery with a
firearm (Counts 2 through 6), to be imposed consecutively to each
other under section 775.087(2)(d), Florida Statutes (2015), the
“10-20-Life” statute, because the crimes arose from a single
criminal episode and the firearm was not discharged. Second, he
contends that the trial court erred by including a mandatory
minimum term in his sentence for aggravated battery while
actually possessing a firearm (Count 8), because the mandatory
minimum term was not orally pronounced at the sentencing
hearing. Third, he contends that the judgment and sentence
erroneously labeled the convictions for attempted robbery with a
firearm (Counts 2 through 6) as first-degree felonies. For the
reasons set forth below, we vacate the sentences and remand for
resentencing and to correct a scrivener’s error.

                                I.

     On January 6, 2015, six friends gathered for a birthday
dinner at Los Rancheros Mexican Restaurant in Pensacola. After
dinner, the friends were hanging out in the parking lot when
Bonner approached them with a firearm and demanded money.
Bonner moved towards the first victim and pointed the firearm
directly at him, within inches from his head, and demanded
money. Once Bonner realized the victim did not have any money,
he moved on. He walked up to each victim and pointed the
firearm directly at each one, except he pointed the firearm
generally into a truck where two victims were sitting. One victim
threw cash on the ground, and another victim was struck with
the firearm. At no point was the firearm discharged.

     The jury found Bonner guilty of the armed robbery,
attempted armed robbery, and aggravated battery. For each of
these counts, the jury found that Bonner actually possessed a
firearm. The jury also found Bonner guilty of fleeing or
attempting to elude a law enforcement officer and resisting arrest
without violence.

     The trial court sentenced Bonner to twenty years for the
armed robbery and ten years for each conviction of attempted
armed robbery, all to run consecutively. The trial court also
imposed a consecutive sentence of ten years for the aggravated
battery. The court did not mention a mandatory minimum term
for this count during the hearing. The trial court imposed a
sentence of five years for fleeing or attempting to elude a law
enforcement officer and one year for resisting arrest without
violence, to run concurrently with the sentence of ten years for
the aggravated battery.

     While this appeal was pending, and before Bonner filed a
brief, he filed a rule 3.800(b)(2) motion to correct two sentencing

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errors. The first error alleged was the imposition of consecutive
mandatory minimum sentences of ten years for the armed
robbery and attempted armed robbery convictions. He argued
that imposing these mandatory minimum sentences as
consecutive to each other was impermissible because the offenses
in this case arose from or were part of a single criminal episode,
and no evidence showed—and the jury did not find—that any
firearm was discharged in the course of any of those crimes. The
second error alleged was that the sentence for aggravated battery
with a firearm included a mandatory minimum term of ten years,
pursuant to section 775.087(2), but the trial court did not orally
impose any mandatory minimum term as part of that sentence.
The trial court denied the motion.

                               II.

     The first issue is whether the consecutive sentences for
multiple firearm offenses are proper. In Williams, the Florida
Supreme Court held that “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.”
186 So. 3d at 993; accord Walton v. State, 208 So. 3d 60, 64 (Fla.
2016) (Walton II), quashing Walton v. State, 106 So. 3d 522 (Fla.
1st DCA 2013) (Walton I). The supreme court further held that
“[i]f . . . multiple firearm offenses are committed
contemporaneously, during which time multiple victims are shot
at, then consecutive sentencing is permissible but not
mandatory.” Williams, 186 So. 3d at 993.

     Here, there is no dispute that Bonner did not discharge the
firearm. This Court and other district courts have consistently
reversed and remanded cases for resentencing where trial courts
have sentenced defendants to consecutive terms for multiple
firearms offenses even when a firearm was not discharged. 1

    1 See Simmons v. State, 215 So. 3d 162, 163 (Fla. 1st DCA
2017) (noting that concurrent sentences were required for
convictions of second-degree murder and attempted second-
degree murder based on shooting of two people by co-defendant
because jury found that appellant only possessed a firearm);
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      But this appeal is slightly different because it turns on
whether Bonner’s actions constituted a single criminal episode,
i.e., whether the multiple firearm offenses were committed
contemporaneously. The State relies on a series of cases to
establish distinct acts but they are distinguishable because each
involved discharging a firearm. 2 In contrast, where a defendant
does not fire a firearm, stacking consecutive sentences has
generally not been authorized. 3 Some older caselaw involved

Clark v. State, 208 So. 3d 853, 854 (Fla. 1st DCA 2017) (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); Gartman, 197 So. 3d at 1182 (holding that no portion of
the sentence for conviction of possession of a firearm by a
convicted felon could run consecutive to sentence for conviction of
armed robbery); Mobley v. State, 197 So. 3d 648, 648-49 (Fla. 1st
DCA 2016) (holding that consecutive sentences were improper for
convictions of two counts of aggravated assault with a firearm
and possession of a firearm by a convicted felon because the
firearm was not discharged).

    2 See State v. Sousa, 903 So. 2d 923 (Fla. 2005) (Sousa II);
State v. Christian, 692 So. 2d 889 (Fla. 1997); State v. Thomas,
487 So. 2d 1043 (Fla. 1986).

    3  See State v. Ames, 467 So. 2d 994, 996 (Fla. 1985)
(disapproving stacking two mandatory minimum terms for armed
burglary, armed robbery, and armed sexual battery of one victim,
without firing weapon, because they occurred during a single,
continuous criminal episode); Lanham v. State, 60 So. 3d 532, 532
(Fla. 1st DCA 2011) (disapproving stacking two mandatory
minimum terms for assaulting two victims with a firearm
because the offenses arose out of the same criminal episode—
insufficient temporal or spatial break—and appellant displayed,
but never fired, his weapon), receded from in Walton I, 106 So. 3d
522; Roberts v. State, 990 So. 2d 671, 674-75 (Fla. 4th DCA 2008)
(disapproving stacking four life sentences for sexual battery with
a firearm, armed kidnapping, burglary with an assault or
battery, and armed robbery, where firearm was used, but not
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situations where multiple offenses within a single criminal
episode justified consecutive sentences, such as a capital felony
committed with a non-capital felony, or when the imposition of
mandatory minimum sentences is authorized under two separate
and distinct statutes. 4 None of these provides definitive guidance
in this case.

     Bonner pointed the firearm at, threatened, and attempted to
take (or took) money multiple times as to six different victims, all
at a single location within a short amount of time (no more than
five minutes). His course of conduct is similar to that used
against the multiple victims in Palmer v. State, 438 So. 2d 1 (Fla.
1983) (brandishing firearm in funeral home filled with mourners,

fired, and offenses were committed within the same criminal
episode—one victim, one place, and over forty-five minutes to an
hour); Perry v. State, 973 So. 2d 1289, 1289-90 (Fla. 4th DCA
2008) (disapproving stacking minimum mandatories for
kidnapping, carjacking, sexual battery, and aggravated fleeing
and eluding where offenses did not occur during different
criminal episodes and appellant used, but never fired, his gun);
Irizarry v. State, 946 So. 2d 555, 558 (Fla. 5th DCA 2006) (finding
appellant’s pointing of a gun at two movie theatre employees did
not authorize consecutive minimum mandatories because
appellant never fired his weapon or harmed anyone).

    4  See, e.g., Downs v. State, 616 So. 2d 444, 445 (Fla. 1993)
(stating “[w]hen the same crime is committed in a
nonsimultaneous manner or when different crimes are committed
in the same episode, however, minimum mandatory sentences
can be consecutive,” and affirmatively answering the question of
whether a trial judge can stack mandatory minimum sentences
in cases involving capital felonies together with non-capital
felonies); McDonald v. State, 564 So. 2d 523, 525 (Fla. 1st DCA
1990) (approving stacking a five-year mandatory minimum
sentence on a drug-trafficking charge with a three-year minimum
for using a firearm during an aggravated assault because,
“although appellant’s separate crimes occurred in a single
criminal episode, the nature of his crimes subjected him to the
imposition of mandatory minimum sentences under two separate
and distinct statutes”).
                                 5
but pointing the gun directly at one victim), where stacking of
consecutive sentences was not permitted. Indeed, it is close to
that in Walton II, which quashed our en banc decision in Walton
v. State, 106 So. 3d 522 (Fla. 1st DCA 2013). See also State v.
Ames, 467 So. 2d 994 (Fla. 1985); Lanham v. State, 60 So. 3d 532
(Fla. 1st DCA 2011); Roberts v. State, 990 So. 2d 671 (Fla. 4th
DCA 2008); Perry v. State, 973 So. 2d 1289 (Fla. 4th DCA 2008);
Irizarry v. State, 946 So. 2d 555 (Fla. 5th DCA 2006).
Accordingly, we hold that Bonner’s course of conduct occurred
within a single criminal episode, and because the firearm was not
discharged, the consecutive sentences are impermissible.

     The second issue is whether the trial court erred by
including a mandatory minimum term in his sentence for
aggravated battery while actually possessing a firearm because
the mandatory minimum term was not orally pronounced at the
sentencing hearing. The State concedes that Bonner is entitled to
a new sentencing hearing so that he can be present when the
trial court announces the mandatory minimum.

     In Dunbar v. State, the trial court orally pronounced a life
sentence for robbery with a firearm, but failed to include in its
oral pronouncement the ten-year mandatory minimum term
required by section 775.087(2), Florida Statutes, for the offense.
89 So. 3d 901, 903 (Fla. 2012). Later that day and without the
parties present, the trial court entered a written sentencing order
including the mandatory minimum term. Id. The lead opinion
explained that “a defendant’s ‘right to be present extends to the
hearing where her sentence will be reconsidered’ because
sentencing is ‘a critical stage of every criminal proceeding.’ In
fact, the right to be present at sentencing is ‘explicitly provided in
the Florida Rules of Criminal Procedure’ which requires that ‘[i]n
all prosecutions for crime the defendant shall be present . . . at
the pronouncement of judgment and the imposition of sentence.’”
Id. at 907 (Polston, J.) (quoting Jackson v. State, 767 So. 2d 1156,
1160 (2000) and citing Fla. R. Crim. P. 3.180(a)) (internal
citations omitted).

    Likewise here, although the trial court was required to
impose the mandatory minimum sentence pursuant to section
775.087(2) regardless of the oral pronouncement, Bonner had the

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right to have the mandatory minimum announced at the hearing.
The trial court properly declined to strike the required
mandatory minimum sentence, but the case needs to be
remanded for a sentencing hearing for the trial court to announce
the mandatory minimum in Bonner’s presence.

     The third issue is whether the designation on the judgment
and sentence that the convictions for five counts of attempted
armed robbery with a firearm are first-degree felonies, instead of
second degree felonies, is a reversible error. There is no question
that the designations are incorrect and need to be corrected.
While armed robbery is a first-degree felony, see section
812.13(2)(a), Fla. Stat. (2017) (“If in the course of committing the
robbery the offender carried a firearm or other deadly weapon,
then the robbery is a felony of the first degree . . . .”), attempted
armed robbery is a second-degree felony. See § 777.04(4)(c), Fla.
Stat. (2017) (“[I]f the offense attempted, solicited, or conspired to
is a life felony or a felony of the first degree, the offense of
criminal attempt, criminal solicitation, or criminal conspiracy is a
felony of the second degree . . . .”). The question is whether the
error can be corrected through this appeal.

     “Sentencing errors” are “harmful errors in orders entered as
a result of the sentencing process.” Jackson v. State, 983 So. 2d
562, 572 (Fla. 2008) (citation omitted). They are “related to the
ultimate sanctions imposed, whether involving incarceration,
conditions of probation, or costs,” id. at 573, and can be corrected
on direct appeal only if they are preserved in some way, either
through a contemporaneous objection or the filing of a motion
under rule 3.800(b)(2) during the pendency of the appeal. Id. at
569. This special preservation rule applies to scrivener’s errors
and fundamental errors alike. Id. (regarding fundamental
errors); Latson v. State, 193 So. 3d 1070, 1071 (Fla. 1st DCA
2016) (regarding scrivener’s errors).

     The incorrect labeling of the offenses in this case is not
harmful and does not affect the ultimate sanction imposed; for
this reason, the Court has corrected this type of error in other
cases. See Danzy v. State, 603 So. 2d 1320, 1323 (Fla. 1st DCA
1992) (“Accordingly, the trial court is instructed to correct this
judgment on remand to reflect that the offenses to which Danzy

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pleaded are second degree felonies, not first degree felonies.”).
Because the case is being remanded for resentencing, the trial
court should address the error for the sake of efficiency.

                              III.

     In conclusion, the case is AFFIRMED in part, REVERSED in
part, and REMANDED for further proceedings consistent with this
opinion.

RAY, MAKAR, and WINSOR, JJ., concur.

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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Andy Thomas, Public Defender, and Mark Graham Hanson,
Assistant Public Defender, for Appellant.

Pamela Jo Bondi, Attorney General, and Samuel Steinberg,
Assistant Attorney General, for Appellee.




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