         IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FIFTH DISTRICT

                                                 NOT FINAL UNTIL TIME EXPIRES TO
                                                 FILE MOTION FOR REHEARING AND
                                                 DISPOSITION THEREOF IF FILED


RICHARD C. SOLOMON,

             Appellant,

 v.                                                     Case No. 5D18-1228

STATE OF FLORIDA,

             Appellee.

________________________________/

Opinion filed August 31, 2018

3.800 Appeal from the Circuit Court
for Lake County,
Lawrence J. Semento, Judge.

Richard C. Solomon, Defuniak Springs, pro
se.

No Appearance for Appellee.


LAMBERT, J.

      Richard C. Solomon appeals the postconviction court’s order summarily denying

his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure

3.800(a). Following a jury trial, Solomon was convicted in July 2008 of armed burglary of

a dwelling, robbery with a firearm, and first-degree felony murder.        The trial court

sentenced Solomon to life imprisonment on each count. The sentences on the first two

counts were run concurrently, but the life sentence on the third count for first-degree
felony murder was ordered to run consecutively to the life sentence imposed in count two.

Additionally, pursuant to section 775.087(2), Florida Statutes (2006), the court imposed

a twenty-five-year minimum mandatory provision as part of Solomon’s sentence for the

robbery with a firearm conviction in count two.

       Solomon raises two grounds for relief. He contends that the twenty-five-year

minimum mandatory provision in count two is illegal based upon the failure of the charging

document to allege the grounds for enhancement in this count and the subsequent lack

of specific factual findings by the jury regarding these grounds. Solomon separately

argues that his sentences on counts one and three are illegal because despite the jury’s

findings on these counts, the trial court failed to also include the required ten-year

minimum mandatory provisions for each count when imposing the respective life

sentences. For the reasons explained below, we reverse and remand for resentencing.

       Section 775.087(2), commonly referred to as the “10-20-Life” statute, provides in

pertinent part:

              (a)1. Any person who is convicted of a felony . . . , regardless
              of whether the use of a weapon is an element of the felony,
              and the conviction was for:

              a. Murder;

              ....

              c. Robbery;

              d. Burglary;

              ....

              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 . . . .




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The statute further provides for a minimum mandatory prison term of twenty years if a

person convicted of one of its enumerated felonies discharged a firearm during the

commission of the crime and for twenty-five-years’ imprisonment if the discharge of the

firearm results in death or great bodily harm inflicted upon any person.             See §

775.087(2)(a)2.-3., Fla. Stat. (2006).

       Solomon is correct that the twenty-five-year minimum mandatory provision in his

life sentence for robbery with a firearm is illegal because the indictment did not allege nor

did the jury find that he discharged a firearm that caused death or great bodily harm during

the commission of this offense. To pursue an enhanced mandatory sentence under the

10-20-Life statute, “the state must allege the grounds for the enhancement in the charging

document, and the jury must make factual findings regarding those grounds.” Bienaime

v. State, 213 So. 3d 927, 929 (Fla. 4th DCA 2017) (citing Lane v. State, 996 So. 2d 226,

227 (Fla. 4th DCA 2008)). In the present case, the allegations contained in this count of

the indictment merely state that in the course of committing the robbery, Solomon or an

accomplice carried a firearm. Although the indictment did allege in count three that

Solomon or an accomplice did shoot the victim with a firearm thereby causing his death,

the State cannot rely on grounds alleged in that count to support an enhanced mandatory

sentence on a different count. See id. (citing Bryant v. State, 744 So. 2d 1225, 1226 (Fla.

4th DCA 1999)).

       The jury found that Solomon personally carried a firearm during the commission of

the robbery.   However, because the jury did not separately find that Solomon also

discharged a firearm that caused the death or great bodily harm of another, we reverse

that part of his sentence on count two that requires Solomon to serve a twenty-five-year




                                             3
minimum mandatory sentence on this count and remand with directions that the trial court

instead impose a ten-year minimum mandatory provision as part of Solomon’s overall

sentence on this count, consistent with the jury’s express findings. See Allen v. State, 853

So. 2d 533, 535-37 (Fla. 5th DCA 2003) (affirming trial court’s order entered under rule

3.800(a) correcting the length of the previously imposed minimum mandatory provision

of the sentence); Parker v. State, 921 So. 2d 812, 812-13 (Fla. 4th DCA 2006) (reversing

enhanced twenty-five-year minimum mandatory sentence imposed pursuant to section

775.087(2)(a)3. absent a clear jury finding that a firearm was discharged); Muldrow v.

State, 842 So. 2d 240, 242 (Fla. 2d DCA 2003) (reversing twenty-year mandatory

minimum sentence because the jury finding of possession of a firearm does not equate

to a finding that the firearm had been discharged).

       Solomon next argues that his sentences on counts one and three are illegal

because the trial court failed to also include a ten-year minimum mandatory provision as

part of the life sentences that he received on each count. Although it would seem

counterintuitive for a defendant, postconviction, to move for an enhanced sentence, rule

3.800(a) provides Solomon recourse as it plainly states, in pertinent part, that “[a] court

may at any time correct an illegal sentence imposed by it . . . when it is affirmatively

alleged that the court records demonstrate on their face an entitlement to that relief.”

Thus, while “[m]otions seeking to impose mandatory minimums are typically filed by the

State . . . nothing [in the rule] prohibits a defendant from filing such a motion.” Burks v.

State, 237 So. 3d 1060, 1062 n.1 (Fla. 3d DCA 2017) (quoting Vargas v. State, 188 So.

3d 915, 916 n.1 (Fla. 5th DCA 2016)).




                                             4
         Solomon was convicted in count one of armed burglary of a dwelling and in count

three of first-degree felony murder.     Both crimes are among those listed in section

775.087(2)(a) to require the imposition of a minimum mandatory sentence by the trial

court when a firearm is found to have been used in the commission of the offense. “[T]he

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.” Johnson v. State, 53 So. 3d 360, 362 (Fla. 5th DCA

2011). Here, based upon the jury’s express findings in counts one and three that Solomon

personally carried a firearm during the commission of these offenses, the trial court had

no discretion but to impose ten-year minimum mandatory conditions as part of the life

sentences imposed on each count. Its failure to do so makes each sentence illegal under

this rule, see Vargas, 188 So. 3d at 916 (citing State v. Row, 478 So. 2d 430, 431 (Fla.

5th DCA 1985); State v. Fulton, 878 So. 2d 485, 485 (Fla. 1st DCA 2004)), and those

sentencing errors can be remedied without violating double jeopardy principles, even

though Solomon has already been serving his sentences. See Dunbar v. State, 89 So.

3d 901, 906-07 (Fla. 2012). Accordingly, we reverse and remand for the trial court to

impose ten-year minimum mandatory provisions to the sentences on counts one and

three.

         Lastly, because the record is clear that Solomon committed all three offenses

during one criminal episode, there is only one victim, and the jury did not find that Solomon

personally discharged his firearm on any of the counts, the minimum mandatory provision

of all three sentences must be run concurrently. See Valentin v. State, 963 So. 2d 317,

319-20 (Fla. 5th DCA 2007) (recognizing that “the imposition of consecutive minimum




                                              5
mandatory sentences under section 775.087(2) . . . is improper where the offenses

occurred during a single criminal episode unless the defendant discharges the firearm

and injures multiple victims or causes multiple injuries to one victim”) (citing State v.

Christian, 692 So. 2d 889 (Fla. 1997); State v. Thomas, 487 So. 2d 1043 (Fla. 1985);

Palmer v. State, 438 So. 2d 1 (Fla. 1983)).

       In sum, we reverse the order on appeal and remand for the trial court to correct

Solomon’s sentences on each count to provide for concurrent ten-year minimum

mandatory provisions for each life sentence. Although Solomon candidly acknowledged

in his motion that his requested sentence correction “will not change the composite term

for [his life] sentence[s],” a defendant’s due process rights are violated when mandatory

minimum terms are added to a sentence without the defendant’s presence. Dunbar, 89

So. 3d at 907. 1 Accordingly, Solomon is to be brought back before the trial court for the

imposition of these concurrent minimum mandatory sentences and counsel should be

appointed to represent him, if Solomon still qualifies for appointed counsel.

       REVERSED and REMANDED for resentencing consistent with this opinion.


COHEN, C.J., and PALMER, J., concur.




       1 In Dunbar, Chief Justice Canady dissented from that part of the court’s decision
remanding for a sentencing proceeding with the defendant present where “given the
mandatory duty of the sentencing court, there is no way in which [the defendant’s]
presence ‘would contribute to the fairness of the procedure.’” Id. at 908. (Canady, C.J.,
concurring in part, and dissenting in part) (quoting Kentucky v. Stincer, 482 U.S. 730, 745
(1987)). This observation appears appropriate here where the nunc pro tunc imposition
of the ten-year minimum mandatory provisions in counts one and three will have no
practical impact because Solomon has been in prison for more than ten years and has
essentially already served the concurrent ten-year minimum mandatory sentences now
to be imposed on each count.


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