       Third District Court of Appeal
                               State of Florida

                            Opinion filed July 5, 2017.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                         Nos. 3D13-2786, 3D13-2803
                        Lower Tribunal No. 09-13518A
                             ________________


                           Linaker Charlemagne,
                           Appellant/Cross-Appellee,

                                        vs.

                            The State of Florida,
                           Appellee/Cross-Appellant.



      Appeals from the Circuit Court for Miami-Dade County, Nushin G. Sayfie,
Judge.

     Carlos J. Martinez, Public Defender, and Susan S. Lerner, Assistant Public
Defender, for appellant/cross-appellee.

      Pamela Jo Bondi, Attorney General, and Jeffrey R. Geldens, Assistant
Attorney General, for appellee/cross-appellant.

Before LAGOA, EMAS and FERNANDEZ, JJ.


       ON REMAND FROM THE SUPREME COURT OF FLORIDA
      EMAS, J.

      Linaker Charlemagne was convicted of one count of first-degree murder

with a firearm (discharging a firearm resulting in death) and one count of

attempted first-degree murder with a firearm (discharging a firearm resulting in

great bodily harm).     The trial court imposed concurrent sentences of life

imprisonment. Pursuant to section 775.087(2)(a)3, Florida Statutes (2009) (the 10-

20-Life statute), each of the life sentences carried a mandatory minimum sentence

of twenty-five years in prison. The trial court ordered that the twenty-five year

mandatory minimum sentences be served concurrently.

      On direct appeal, we affirmed the convictions. Charlemagne v. State, 185

So. 3d 540 (Fla. 3d DCA 2016) (Mem). The State cross-appealed the twenty-five

year mandatory minimum sentences, contending that the trial court did not have

the discretion to direct that they be served concurrently. The State argued that the

language of the 10-20-Life statute required that the twenty-five year mandatory

minimum terms be imposed consecutively.

      We agreed, reversed the sentences and remanded with directions that the

sentences be corrected to reflect that the twenty-five year mandatory minimum

terms shall be served consecutively. In doing so, we relied upon Williams v. State,

125 So. 3d 879 (Fla. 4th DCA 2013) and Walton v. State, 106 So. 3d 522 (Fla. 1st

DCA 2013), each of which was subsequently quashed by the Florida Supreme



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Court.1 See Walton v. State, 208 So. 3d 60 (Fla. 2016); Williams v. State, 186 So.

3d 989 (Fla. 2016). In Williams, the Florida Supreme Court addressed whether

and under what circumstances the 10-20-Life statute prohibited, permitted or

required consecutive mandatory minimum sentences. The Court held that, for

purposes of sentencing under the 10-20-Life statute:

      Generally, 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. . . . It follows, therefore, that a
      trial court must impose the mandatory minimum sentences
      concurrently under such circumstances.

      If, however, multiple firearm offenses are committed
      contemporaneously, during which time multiple victims are shot at,
      then consecutive sentencing is permissible but not mandatory. In other
      words, a trial judge has discretion to order the mandatory minimum
      sentences to run consecutively, but may impose the sentences
      concurrently.

      Id. at 993 (internal citations omitted).

      Charlemagne petitioned for review in the Florida Supreme Court.            The

Florida Supreme Court granted review, quashed our decision, and remanded the

case for reconsideration in light of its decisions in Walton and Williams.

      It is undisputed that Charlemagne was convicted of multiple firearm

offenses, committed contemporaneously, during which multiple victims were shot

1 We also relied upon our decision in Morgan v. State, 137 So. 3d 1075 (Fla. 3d
DCA 2014). The Florida Supreme Court subsequently quashed Morgan and
remanded the case for reconsideration in light of Walton and Williams. Morgan v.
State, SC14-757 (Fla. May 26, 2017).

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at. Therefore, under Williams, the imposition of consecutive mandatory minimum

sentences was permissible but not mandatory. The transcript of the sentencing

hearing establishes that the trial court exercised its discretion in ordering that the

mandatory minimum sentences be served concurrently rather than consecutively.

These sentences were consistent with the Florida Supreme Court’s holding in

Williams, and were within the trial court’s discretion.

      We therefore affirm the convictions (direct appeal) and the sentences

imposed by the trial court (cross-appeal), including the twenty-five year mandatory

minimum sentences, which the trial court ordered to be served concurrently.

      Affirmed.




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