           FIRST DISTRICT COURT OF APPEAL
                  STATE OF FLORIDA
                  _____________________________

                          No. 1D18-3828
                  _____________________________

JERMAINE EARL,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                  _____________________________


On appeal from the Circuit Court for Leon County.
James C. Hankinson, Judge.

                           June 7, 2019


WOLF, J.

     This is a timely appeal of the denial of a motion filed pursuant
to Florida Rule of Criminal Procedure 3.800(a). The issue is
whether the postconviction court erred in denying appellant’s rule
3.800(a) motion in which he argued the trial court’s failure to
impose mandatory minimum sentences rendered his sentence
illegal.

     We find the decision of the trial court was not adverse to
appellant and dismiss this appeal. We also certify conflict with
decisions from the Third and Fifth District Courts of Appeal that
reached the merits of this issue and did not dismiss the appeal.
                              FACTS

     Appellant filed a rule 3.800(a) motion alleging his sentences
were illegal because the trial court failed to impose a 10-year
mandatory minimum sentence. He stated he was convicted of
armed robbery and kidnapping, and he was sentenced to life in
prison for each count as a Prison Releasee Reoffender (PRR).
However, the court did not impose a mandatory minimum
sentence, which appellant argues was legally required pursuant to
section 775.087(2), Florida Statues, because the jury found he was
in actual possession of a firearm.

    The postconviction court denied the motion, finding that
although the trial court could have included a 10-year mandatory
minimum for each sentence, the failure to do so did not make the
sentences illegal because such a determination would not have
changed appellant’s incarceration by one day.

                             ANALYSIS

     Appellant is correct that the trial court should have imposed
a mandatory minimum sentence here. Under the 10-20-Life
statute, any person convicted of certain numerated offenses
including robbery and kidnapping, who was in actual possession of
a firearm, shall be sentenced to a mandatory minimum term of 10
years in prison. § 775.087(2)(a)1.c., g., Fla. Stat. Imposition of a
mandatory minimum sentence under the 10-20-Life statute is
required even where the defendant was sentenced as a prison
releasee reoffender. McDonald v. State, 957 So. 2d 605, 611 (Fla.
2007) (“[T]he language of the 10–20–LIFE statute plainly requires
that the mandatory minimum sentence be imposed concurrently
with the minimum mandatory sentence of the PRR statute even
though the 10–20–LIFE sentence is less than the PRR sentence.”).

     The imposition of a mandatory minimum sentence is
“nondiscretionary.” Dunbar v. State, 89 So. 3d 901, 906 (Fla. 2012)
(finding a trial court did not violate double jeopardy by adding
“nondiscretionary” mandatory minimum sentence to the
defendant’s written sentence).

    Both the Third District and the Fifth District have permitted
defendants to raise this issue through a rule 3.800(a) motion and

                                 2
have remanded for resentencing. The Fifth District reasoned that
“[m]otions seeking to impose mandatory minimums are typically
filed by the State, but nothing prohibits a defendant from filing
such a motion.” Vargas v. State, 188 So. 3d 915, 916 n.1 (Fla. 5th
DCA 2016) (reversing and remanding for resentencing where the
trial court failed to impose mandatory minimum sentences but
declining to reach the issue of whether the trial court erred in
running the sentences consecutively). In a similar case, the Fifth
District further reasoned that “[a]lthough it would seem
counterintuitive for a defendant, postconviction, to move for an
enhanced sentence, rule 3.800(a) provides . . . recourse as it plainly
states . . . that ‘[a] court may at any time correct an illegal
sentence,’” and the failure to impose a mandatory minimum
sentence under the 10-20-Life statutes “makes each sentence
illegal.” Solomon v. State, 254 So. 3d 1121, 1124 (Fla. 5th DCA
2018). Thus, the Fifth District granted the motion and remanded
for resentencing even though the defendant conceded that doing so
“will not change the composite term for [his life] sentence[s].” Id.
at 1125.

     Relying on Vargas, the Third District agreed that nothing
prohibits a defendant from filing a rule 3.800(a) motion
challenging the trial court’s failure to impose a mandatory
minimum sentence under the 10-20-Life statute. Burks v. State,
237 So. 3d 1060, 1062 n.1 (Fla. 3d DCA 2017) (reversing and
remanding for resentencing).

      We decline to follow the Third and Fifth Districts. While a
sentence that fails to impose a mandatory minimum sentence may
be “illegal,” that illegality is in appellant’s favor. It is not adverse
to him. “The general rule on appeal to review proceedings of an
inferior court is that a party to the cause may appeal only from a
decision in some respect adverse to him.” Credit Indus. Co. v.
Remark Chem. Co., 67 So. 2d 540, 541 (Fla. 1953). “A party may .
. . appeal when he is ‘aggrieved by the judgment.’” Fountain v. City
of Jacksonville, 447 So. 2d 353, 354 (Fla. 1st DCA 1984).

     Specifically, “defendants have the right to appeal an adverse
ruling of a 3.800(a) motion.” Johnson v. State, 961 So. 2d 195, 197
(Fla. 2007) (emphasis added) (requiring trial courts to advise
defendants of their right to appeal from rule 3.800(a) motions). The

                                   3
appellate rules permit a defendant to appeal an order “denying
relief” under rule 3.800(a). Fla. R. App. P. 9.140 (b)(1)(D).

    Here, though the trial court denied appellant’s motion, that
order was not adverse to appellant, nor did it deny him relief,
because he did not seek “relief” through his motion. He sought a
harsher sentence.

     Because the order denying appellant’s rule 3.800(a) motion
was not adverse to appellant, we dismiss appellant’s request for
relief and certify conflict with the Third and Fifth District Courts
in Vargas v. State, 188 So. 3d 915 (Fla. 5th DCA 2016); Solomon v.
State, 254 So. 3d 1121 (Fla. 5th DCA 2018); and Burks v. State, 237
So. 3d 1060 (Fla. 3d DCA 2017). Dismissal rather than affirmance
is appropriate where an appellant challenges a non-adverse
decision. See Credit Indus. Co., 67 So. 2d at 541.

    This case is DISMISSED.

BILBREY and WINSOR, JJ., concur.

                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Jermaine Earl, pro se, Appellant.

Ashley Moody, Attorney General, Tallahassee, for Appellee.




                                 4
