       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                       JOSE LUIS COSME-SELLA,
                              Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                              No. 4D18-3425

                              [July 1, 2020]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Jeffrey J. Colbath, Judge; L.T. Case No. 2016CF009732.

   Carey Haughwout, Public Defender, and Christine C. Geraghty,
Assistant Public Defender, West Palm Beach, for appellant.

   Ashley Moody, Attorney General, Tallahassee, and Marc B. Hernandez,
Assistant Attorney General, West Palm Beach, for appellee.

GERBER, J.

   The defendant appeals from his convictions and sentences for second
degree murder with a weapon (as a lesser included offense of first degree
murder with a weapon) and robbery with a weapon as charged. The
defendant raises five arguments: (1) the state did not present sufficient
evidence to support his second degree murder with a weapon conviction;
(2) the state shifted the burden of proof on the independent act
instruction’s elements to the defendant, and the trial court’s curative
instruction was insufficient; (3) the trial court fundamentally erred during
sentencing by considering first degree felony murder elements after the
jury did not find him guilty of that crime; (4) the trial court erred by
sentencing him above the statutory maximum for robbery with a weapon;
and (5) the trial court’s judgment contains scrivener’s errors for both
convictions.

   We affirm on the first three arguments, reverse and remand for
sentence correction on the fourth argument. and remand to correct the
scrivener’s errors on the fifth argument. We address each argument in
turn.
   On the first argument, we conclude, without further discussion, that
sufficient evidence supported the defendant’s second degree murder with
a weapon conviction.

    On the second argument, a brief portion of the state’s rebuttal
argument was stated in the passive voice – “So this is not an independent
act, it doesn’t apply in this case. And again, look at all those acts, it
requires all three elements to be proven and they just weren’t.” (emphasis
added). We agree this statement could have been misinterpreted as
shifting the burden of proof on the independent act instruction’s elements
to the defendant. However, we conclude the trial court’s immediate
curative instruction, reminding the jury that the defendant did not have
to prove anything, sufficiently cured any misinterpretation. See Boggess
v. State, 269 So. 3d 616, 621 (Fla. 4th DCA 2019) (“[A]n immediate curative
instruction on the burden of proof may be sufficient to clarify an issue at
bar and remove any confusion.”); Asencio v. State, 244 So. 3d 294, 299
(Fla. 4th DCA 2018) (“[A]bsent a finding to the contrary, juries are
presumed to follow the instructions given them.”) (citation omitted). The
defendant did not object to the curative instruction’s sufficiency, and
therefore did not preserve his argument on appeal that the trial court could
have improved the curative instruction by expressly informing the jury
that the state had the burden to disprove the independent act instruction’s
elements.

   On the third argument, we conclude, without further discussion, that
the trial court’s statements during sentencing did not indicate the trial
court had considered first degree felony murder elements when sentencing
the defendant for second degree murder with a weapon.

   On the fourth argument, the defendant’s Florida Rule of Criminal
Procedure 3.800(b)(2) motion to correct sentencing error argued the
statutory maximum for robbery with a weapon is thirty years in prison,
but the trial court had incorrectly sentenced the defendant to thirty-two
years in prison on that conviction. The trial court did not rule on the
defendant’s motion to correct sentencing error, so the motion was deemed
denied. The state now concedes the trial court erred by sentencing the
defendant above the statutory maximum for that conviction.

   We agree with the state’s concession of error. “A sentence can exceed
the statutory maximum, but only if the lowest permissible sentence under
the sentencing code exceeds the statutory maximum.” Flewellen v. State,
98 So. 3d 210, 211 (Fla. 4th DCA 2012) (citation omitted). Here, the
defendant’s lowest permissible sentence was 23.95 years, which did not

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exceed the thirty-year statutory maximum for robbery with a firearm. See
§§ 812.13(2)(b), 775.082(3)(b), Fla. Stat. (2016). Thus, we reverse the
sentence on that conviction (count II) and, as the defendant has requested,
remand for the trial court to impose a thirty-year sentence on that
conviction, to run concurrently with the thirty-two year sentence on the
second degree murder with a weapon conviction (count I). The defendant
need not be present for this ministerial correction.

    On the fifth argument, the defendant’s rule 3.800(b)(2) motion also
argued the trial court’s judgment misidentified the statute citation for
second degree murder with a weapon, and misidentified robbery with a
weapon as a punishable by life (“PBL”) felony when it is a first degree
felony. Again, the trial court did not rule on the defendant’s motion to
correct sentencing error, so the motion was deemed denied. The state now
concedes those scrivener’s errors in the judgment require correction.

    We agree with the concession of error. On count I, the defendant was
convicted of second degree murder with a weapon under section 782.04(2),
Florida Statutes (2016), not section 782.04(1)(a)1. and 2. as indicated in
the judgment (and corresponding to first degree premeditated murder and
felony murder). On count II, the defendant was convicted of robbery with
a weapon under section 812.13(2)(b), Florida Statutes (2016), as a first
degree felony punishable by a thirty-year maximum sentence, not as a first
degree felony “PBL.” We remand for the trial court to correct the
scrivener’s errors in the judgment accordingly.

   Based on the foregoing, we affirm the defendant’s convictions for
second degree murder with a weapon and robbery with a weapon, affirm
the defendant’s sentence for murder with a weapon, reverse and remand
for correction of the defendant’s sentence for robbery with a firearm, and
remand for correction of the scrivener’s errors in the judgment.

   Affirmed in part, reversed in part, remanded for sentence corrections.

GROSS and FORST, JJ., concur.

                           *         *        *

   Not final until disposition of timely filed motion for rehearing.




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