       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                         MARVIN BROADWAY,
                             Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D13-4260

                           [December 2, 2015]

   Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Ilona Holmes, Judge; L.T. Case No. 120016004CF10A.

  Carey Haughwout, Public Defender, and Jonathan Dodson, Assistant
Public Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers,
Assistant Attorney General, West Palm Beach, for appellee.

GERBER, J.

    The defendant appeals from his conviction and life sentence for the
reclassified first-degree felony of attempted robbery with a non-discharged
firearm while wearing a mask which concealed his identity. The defendant
raises six arguments. We affirm on all arguments except for two
arguments relating to the defendant’s life sentence. On those two
arguments, the defendant alleges the trial court erred in finding: (1) the
habitual violent felony offender statute, section 775.084(1)(b), Florida
Statutes (2012), mandated a life sentence; and (2) the 10-20-Life statute,
section 775.087(2)(a), Florida Statutes (2012), also mandated a life
sentence.      We agree with those two arguments and reverse for
resentencing.

   In sentencing the defendant, the court stated:

      Well, you know, this is always a sad day for this Court when
      I have to sentence someone that is young to an extended time
      in prison. But I do follow the law. I explained to [the
      defendant] that I would have to follow the law if there was a
      conviction in this case.

      ....

      If I had the discretion I would sentence him to something a lot
      less than the statutes require because of his age. He is young.
      But I don’t have that discretion. . . .

      ....

      As to that only count in the information, the Court hereby
      sentences you, as a habitual violent felony offender, to life in
      Florida State Prison. Under 10-20-Life, life in Florida State
      Prison, and as a prison releasee re-offender, 30 years, which
      is a minimum mandatory.

      Under the 10-20-Life sentence, that is mandatory life. However
      it is mandatory under habitual violent felony offender. He is
      effectively doing a life sentence. He is designated – it’s one
      sentence, but he is qualified under all. The Court has imposed
      those provisions of the statute.

(emphasis added).

   After orally pronouncing the sentence, the court entered a written
disposition order. Page one of the order indicated that the court sentenced
the defendant to life in prison, and page two of the order indicated that the
court imposed the following “Special Conditions of Prison Sentence”:

    X   Habitual Violent Offender mandatory minimum Life years
   ....
    X   Prison Releasee Reoffender mandatory minimum 30 years
    X   Firearm mandatory minimum                    Life years

   Five days after entering the written disposition order, the court sua
sponte entered a corrected disposition order “as to page 2.” The corrected
page two indicated that the court imposed the following “Special
Conditions of Prison Sentence”:

    X   Habitual Violent Offender mandatory minimum   0            years
   ....
    X   Prison Releasee Reoffender mandatory minimum 30            years
    X   Firearm mandatory minimum                    10            years

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   The defendant later filed a motion to correct sentencing error. In the
motion, the defendant argued that the trial court misapprehended its
discretion when sentencing him to a life sentence under the habitual
violent felony offender statute and the 10-20-Life statute, while remarking
it would sentence him to “something a lot less” if it had the discretion.
According to the defendant, neither the habitual violent felony offender
statute nor the 10-20-Life statute mandated a life sentence in this case.

   The trial court, without comment, denied the defendant’s motion to
correct sentencing error. This appeal followed.

    On the defendant’s first argument that the habitual violent felony
offender statute did not mandate a life sentence, the state acknowledges
that “[w]hat the trial judge stated regarding the habitual violent [felony]
offender statute appears to be incorrect when read literally.” The state
then properly cites case law for the proposition that sentencing under the
habitual violent felony offender statute “is permissive, not mandatory.”
Adams v. State, 617 So. 2d 474, 474 (Fla. 4th DCA 1993).

    We agree with the state’s concession. See § 775.084(1)(b), Fla. Stat.
(2012) (“‘Habitual violent felony offender’ means a defendant for whom the
court may impose an extended term of imprisonment, as provided in
paragraph (4)(b) . . . .”) (emphasis added); § 775.084(4)(b)1., Fla. Stat.
(2012) (“The court . . . may sentence the habitual violent felony offender
as follows: . . . In the case of a life felony or a felony of the first degree, for
life, and such offender shall not be eligible for release for 15 years.”)
(emphasis added).

   On the defendant’s second argument that the 10-20-Life statute did not
mandate a life sentence, the state acknowledges that “when read literally,
what the trial judge stated . . . regarding the 10-20-[L]ife statute is not
correct.”

    We agree with the state’s concession here too. See § 775.087(2)(a)1.c.,
Fla. Stat. (2012) (“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 . . . [r]obbery . . . and during the
commission of the offense, such person actually possessed a ‘firearm’ . . .
shall be sentenced to a minimum term of imprisonment of 10 years . . . .”)
(emphasis added).



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   We acknowledge that the trial court’s corrected disposition order “as to
page 2” may have indicated the court’s post-sentencing recognition that
neither the habitual violent felony offender statute nor the 10-20-Life
statute mandated a life sentence in this case. We also acknowledge that
the court, after having corrected the disposition order, nevertheless denied
the defendant’s motion to correct sentencing error, thus perhaps
indicating the court’s intent to maintain the defendant’s life sentence.

   However, our acknowledgement of those events does not eliminate the
fact that the trial court imposed the life sentence at a time when, at least
according to the transcript, the court mistakenly indicated it had no
discretion but to impose a life sentence, just immediately after stating: “If
I had the discretion I would sentence him to something a lot less than the
statutes require because of his age.”

     Based on the foregoing, we remand for resentencing so that the trial
court may exercise its sentencing discretion with the express
understanding that neither the habitual violent felony offender statute nor
the 10-20-Life statute mandates a life sentence in this case. See, e.g.,
Goldwire v. State, 73 So. 3d 844, 846 (Fla. 4th DCA 2011) (“[W]here the
record suggests that the trial court mistakenly believed it had no discretion
. . . to sentence appellant, the case should be remanded for the trial court
[to] exercise its sentencing discretion and consider all sentencing
alternatives.”) (alterations in original; citation and internal quotation
marks omitted).

   As the defendant acknowledges, however, the court is required to
resentence the defendant as a habitual violent felony offender in some
manner which exceeds the thirty-year mandatory minimum sentence as a
prison release reoffender. See Johnson v. State, 927 So. 2d 251, 252 (Fla.
2d DCA 2006) (“[I]f the incarceration portion of an HFO sentence does not
exceed the PRR sentence, the sentences violate the PRR.”).

   Affirmed in part, reversed in part, and remanded for resentencing.

CIKLIN, C.J., and GROSS, J., concur.

                            *          *       *

  Not final until disposition of timely filed motion for rehearing.




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