          DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT
                             July Term 2014

                        DOMINIQUE WRIGHT,
                            Appellant,

                                   v.

                         STATE OF FLORIDA,
                              Appellee.

                            No. 4D12-1124

                            [July 23, 2014]


   Appeal and cross-appeal from the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Barry M. Cohen, Judge; L.T. Case
No. 2008CF004966BXX.

   Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public
Defender, West Palm Beach, for appellant.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L.
Melear, Assistant Attorney General, West Palm Beach, for appellee.

MAY, J.

   The defendant appeals his conviction and sentence for attempted first-
degree murder with a firearm and aggravated battery with a firearm. He
argues the trial court erred in admitting victim one’s testimony from the
suppression hearing and two rap videos. He also argues the court erred
in excluding certain portions of victim one’s deposition testimony. The
State cross-appeals and argues the trial court erred in imposing his
sentences as concurrent, rather than consecutive.

   We find no merit in the defendant’s issues on appeal and affirm his
conviction. We reverse the sentences however on the State’s cross-appeal,
and remand the case to the trial court for imposition of consecutive
sentences based on section 775.087(2)(d), Florida Statutes (2011).

  The defendant and co-defendant shot at two people in a car while they
were parked in a driveway. They wounded victim one in the face and the
arm. Victim two was injured by flying glass from the vehicle caused by the
gunshots. The State charged the defendant and co-defendant with
attempted first-degree murder of victim one and aggravated battery of
victim two, both with a firearm.

    Prior to trial, the defense moved to suppress victim one’s photo-lineup
identification of the defendant, arguing it was tainted and unreliable.
Victim one testified at the suppression hearing and gave a detailed account
of the shooting. The court denied the motion to suppress.

   Victim one was murdered four days after the hearing. The State asked
the court to find victim one unavailable for trial and allow the admission
of his suppression hearing testimony. Defense counsel objected and
argued he had an insufficient opportunity to cross-examine victim one at
the hearing. The trial court ruled the testimony admissible.

   The jury found the defendant guilty as charged, specifically finding he
actually possessed and discharged a firearm, causing great bodily harm.
The trial court sentenced the defendant to thirty years’ imprisonment with
a twenty-five-year mandatory minimum for the attempted murder of victim
one. The court sentenced the defendant to twenty years’ imprisonment
with a twenty-year mandatory minimum for the aggravated battery of
victim two. Over the State’s objection, the court ordered the sentences to
run concurrently. Both the State and the defendant filed timely notices of
appeal to this Court.

    We find no error in the trial court’s ruling that the defense had sufficient
opportunity to cross-examine the victim at the hearing on the motion to
suppress. See Thompson v. State, 995 So. 2d 532 (Fla. 2d DCA 2008)
(finding murdered witness’s prior testimony admissible where defendant
was present, motivated to probe witness’s recollection and credibility, and
had an opportunity to cross-examine witness at first hearing). We also
find no error in the trial court’s ruling not to allow the use of certain
portions of victim one’s deposition as inconsistent statements. See
§ 90.614(2), Fla. Stat. (2011) (“Extrinsic evidence of a prior inconsistent
statement by a witness is inadmissible unless the witness is first afforded
an opportunity to explain or deny the prior statement . . . .”); see also
Mattox v. United States, 156 U.S. 237 (1895) (finding the court properly
excluded alleged inconsistent statement as the defendant could not lay a
proper foundation).

   And last, we find no error in the trial court’s admission of the rap videos
created by the defendant as they were relevant to the commission of the
crime. See Faust v. State, 95 So. 3d 421 (Fla. 4th DCA 2012) (finding audio

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recordings suggesting the defendant was using code words to direct others
to get rid of a weapon were relevant). We therefore affirm the defendant’s
conviction.

    The State however raises a valid argument on cross-appeal. It argues
that the trial court’s imposition of concurrent mandatory minimum
sentences for possession and discharge of a firearm on two separate
felonies constitutes an illegal sentence. We agree. We have de novo review.
Jackson v. State, 925 So. 2d 1168, 1169 n.1 (Fla. 4th DCA 2006).

    Section 775.087(2)(d) states:

       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 imprisonment
       provided for in this subsection consecutively to any other
       term of imprisonment imposed for any other felony
       offense.

§ 775.087(2)(d), Fla. Stat. (2011) (emphasis added). The State argues that
“shall” means the trial court lacks discretion to impose anything but a
consecutive sentence.

   We addressed this issue in Williams v. State, 125 So. 3d 879 (Fla. 4th
DCA 2013). There, the defendant was sentenced to “four consecutive
minimum mandatory twenty-year sentences on four counts of aggravated
assault with a firearm resulting from one criminal episode.” Id. at 880.
On appeal, the defendant argued the trial court erred in finding that it had
no discretion but to impose consecutive sentences. We held that the
statute requires the trial court to impose consecutive sentences; there is
no discretion.1 Id.


1We certified the following question to the supreme court as one of great public
importance:

       Does section 775.087(2)(d)’s statement that “The court shall impose
       any term of imprisonment provided for in this subsection
       consecutively to any other term of imprisonment imposed for any
       other felony offense” require consecutive sentences when the
       sentences arise from one criminal episode?

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   Based on our decision in Williams, the defendant agrees that the
imposed sentence is illegal. We therefore reverse and remand this case to
the trial court to vacate the concurrent sentences and to impose them
consecutively. Because Williams is currently before the Florida Supreme
Court, as requested by the defense, we again certify the following question
as one of great public importance:

      Does section 775.087(2)(d)’s statement that “The court shall
      impose any term of imprisonment provided for in this
      subsection consecutively to any other term of imprisonment
      imposed for any other felony offense” require consecutive
      sentences when the sentences arise from one criminal
      episode?

  Affirmed on Direct Appeal; Reversed and Remanded on the State’s Cross-
Appeal.

DAMOORGIAN, C.J., and WARNER, J., concur.

                           *         *        *

   Not final until disposition of timely filed motion for rehearing.




Id. at 884. The Florida Supreme Court accepted jurisdiction and held oral
argument on June 4, 2014.

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