                                     IN THE DISTRICT COURT OF APPEAL
                                     FIRST DISTRICT, STATE OF FLORIDA

MICHAEL J. MARTIN,                   NOT FINAL UNTIL TIME EXPIRES TO
                                     FILE MOTION FOR REHEARING AND
      Appellant,                     DISPOSITION THEREOF IF FILED

v.                                   CASE NO. 1D14-910

STATE OF FLORIDA,

      Appellee.

_____________________________/

Opinion filed May 6, 2016.

An appeal from the Circuit Court for Leon County.
Frank E. Sheffield, Judge.

Nancy A. Daniels, Public Defender, and Michael Ufferman of the Michael
Ufferman Law Firm, P.A., Tallahassee, for Appellant.

Pamela Jo Bondi, Attorney General, and Matthew Pavese, Assistant Attorney
General, Tallahassee, for Appellee.


PER CURIAM

      Michael Martin was convicted of two crimes: aggravated battery with a

firearm (count one) and possession of a firearm by a convicted felon (count two).

Only count one was charged under section 775.087, Florida Statutes, colloquially

known as the “10-20-Life” statute. During the course of Martin’s criminal episode,

he discharged a firearm causing injury to others. He was sentenced to consecutive
terms of twenty years 1 and five years, respectively, on counts one and two. On

appeal, we affirm as to all issues Martin has raised, but explain why his

consecutive sentences are permissible.

      Martin’s argument is that the trial court erred by imposing consecutive terms

on counts one and two, which both arose from one criminal episode. He relies

exclusively on Swanigan v. State, 57 So. 3d 989 (Fla. 5th DCA 2011), which held

that the trial court erred by imposing a consecutive sentence for one of five

charges, that being possession of a firearm by a convicted felon (count V), 2 a

charge that does not require the discharge of a firearm. The Fifth District noted the

“general rule” arising from a series of Florida Supreme Court cases “is that the

imposition of consecutive minimum mandatory sentences under section

775.087(2), Florida Statutes (2008), 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.” Id. at 990.

Although Swanigan and “an accomplice burst into a home, looking for money,


1
  He was initially sentenced to twenty-five years, but that was reduced to twenty
years because “great bodily harm”—though proven at trial—was not alleged in the
information, requiring a correction of Martin’s sentence.
2
  Swanigan was charged with “attempted second-degree murder with a firearm
(count I), burglary of a dwelling (count II), aggravated battery with a firearm
(count III), simple battery (count IV), and possession of a firearm by a convicted
felon (count V).” Swanigan v. State, 57 So. 3d 989, 990 (Fla. 5th DCA 2011).

                                         2
kicking and hitting one person and then shooting a second person,” id., thereby

establishing that a firearm was discharged, the Fifth District apparently focused

only on the elements of the possession charge itself, which did not require

discharge of the firearm. On this basis, the court held that no authority existed “for

imposition of a consecutive sentence for the conviction of possession of a firearm

by a convicted felon in the course of the single criminal episode,” remanding for

the “imposition of a concurrent sentence.” Id.

      But Swanigan is inapplicable. Martin concedes, however, that our decision

in Walton v. State, 106 So. 3d 522 (Fla. 1st DCA 2013), review granted, 145 So.

3d 830 (Fla. 2014), precludes relief because “section 775.087(2)(d) authorizes

consecutive minimum mandatory sentences for multiple offenses committed

during a single episode, involving multiple victims, where the defendant

discharges a firearm.” Walton, 106 So. 3d at 527. In our district, the operative

focus is on whether a firearm was actually discharged during the criminal episode,

not on whether it is an element of each of the charges.

      The Legislature’s intent, and its charge to the judiciary, is specified in

section 775.087(2)(d), which states:

      (d) It is the intent of the Legislature that offenders who actually
      possess, carry, display, use, threaten to use, or attempt to use firearms
      or destructive devices be punished to the fullest extent of the law, and
      the minimum terms of imprisonment imposed pursuant to this
      subsection shall be imposed for each qualifying felony count for
      which the person is convicted. The court shall impose any term of
                                          3
      imprisonment provided for in this subsection consecutively to any
      other term of imprisonment imposed for any other felony offense.
§ 775.087, Fla. Stat. (emphasis added). The highlighted language was the focus of

the Florida Supreme Court’s recent decision in Williams v. State, 41 Fla. L.

Weekly S73 (Fla. Mar. 3, 2016), which—consistent with Walton—explained that

if “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.

      Here, because a firearm was discharged, the principles of Williams and

Walton apply, making it permissible to impose consecutive sentences. A remand is

unnecessary in this case, however, because nothing suggests the trial judge did

anything other than exercise his discretion in ordering that the possession

conviction run consecutively to the aggravated assault conviction. Although no

argument was made at sentencing that he was required to impose the sentence for

that charge consecutively, it appears—in light of Williams—that he would have

been required to do so. An important point established in Williams is that the 10-

20-Life statute “expressly mandates only that a qualifying felony sentence run

‘consecutively to’ any sentence imposed for a non-qualifying felony. Nothing

within paragraph (2)(d)’s plain language also requires, as the State posits, a
                                         4
qualifying felony sentence to run consecutively to another qualifying felony

sentence.” Id. But Martin was not charged in the information under the 10-20-Life

statute for both offenses; only the aggravated battery offense was charged under

that statute, making it a “qualifying” offense. The possession offense was not

charged under the 10-20-Life statute, making it a “non-qualifying” offense.

Though Walton involved only charges for which consecutive mandatory minimum

sentences applied, and only count one against Martin involves such a charge, that

distinction is not germane in light of Williams’s dichotomy between “qualifying”

and “non-qualifying” offenses. As such, the trial court would have been required to

run the sentences consecutively under section 775.087(2)(d).

      AFFIRMED.

WETHERELL, MAKAR, and WINOKUR, JJ., CONCUR.




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