           Supreme Court of Florida
                                     ____________

                                    No. SC17-1598
                                    ____________

                               ROBERT R. MILLER,
                                   Petitioner,

                                           vs.

                               STATE OF FLORIDA,
                                   Respondent.

                                    October 4, 2018

QUINCE, J.

      Robert R. Miller seeks review of the decision of the First District Court of

Appeal in Miller v. State, 224 So. 3d 851 (Fla. 1st DCA 2017). The district court

certified that its decision is in direct conflict with the decision of the Fifth District

Court of Appeal in Torres-Rios v. State, 205 So. 3d 883 (Fla. 5th DCA 2016). We

have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

                                         FACTS

      Miller was convicted for the kidnapping with a firearm and aggravated

battery of Steven Cooley as well as of possession of a firearm by a convicted felon.

At sentencing, Miller was determined to be a habitual felony offender (“HFO”).
The State argued that the mandatory sentences had to run consecutively under the

statute and caselaw. Defense counsel argued that because there was only one

victim, the mandatory minimums were not required to run consecutively and

requested that they run concurrently. The trial judge agreed with the State that he

had no discretion and sentenced Miller to twenty years’ incarceration as an HFO

on the kidnapping conviction, with a mandatory minimum of ten years, to ten

years’ incarceration, with a mandatory minimum of ten years as an HFO on the

aggravated battery conviction, and to five years’ incarceration, with a mandatory

minimum of three years as an HFO on the possession conviction. The sentences,

including the mandatory minimums, were all consecutive.

      Miller appealed his consecutive sentences to the First District, which

affirmed. Miller v. State, 151 So. 3d 566 (Fla. 1st DCA 2014) (citing Walton v.

State, 106 So. 3d 522 (Fla. 1st DCA 2013), quashed, 208 So. 3d 60 (Fla. 2016)).

On appeal, this Court quashed the First District’s decision and remanded the case

for reconsideration in light of this Court’s decisions in Walton and Williams v.

State, 186 So. 3d 989 (Fla. 2016). Miller v. State, 42 Fla. L. Weekly S680, 2017

WL 2302346 at *1 (Fla. May 26, 2017).

      On remand from this Court for reconsideration pursuant to Walton, the First

District determined that this Court “did not explicitly discuss a case factually

similar to this one, in which appellant committed two gun-related offenses . . . but


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appellant’s crimes involved only one victim who sustained only one physical

injury.” Miller, 224 So. 3d at 852. The district court therefore reversed and

remanded for the trial court to consider “whether, in its discretion, it wishes for

appellant to serve his minimum mandatory sentences concurrently or

consecutively.” Id. Miller now seeks this Court’s review.

                                   DISCUSSION

      Because our caselaw reflects that the crimes stemming from a single

criminal episode involving a single victim or a single injury may not be sentenced

consecutively, we quash the decision of the First District and remand with

instructions to remand to the trial court to enter concurrent sentences.

      This Court has long held that, where there is a single victim, “consecutive

sentencing of mandatory minimum imprisonment terms for multiple firearm

offenses is impermissible if the offenses arose from the same criminal episode.”

Williams, 186 So. 3d at 993 (citing State v. Sousa, 903 So. 2d 923, 927 (Fla. 2005);

Palmer v. State, 438 So. 2d 1, 4 (Fla. 1983); Perreault v. State, 853 So. 2d 604,

606 (Fla. 5th DCA 2003)). Where, during a single criminal episode, there are

multiple victims or multiple injuries to a single victim, consecutive sentences are

permitted at the discretion of the trial judge. See Sousa, 903 So. 2d at 925-26;

State v. Christian, 692 So. 2d 889, 890-91 (Fla. 1997); State v. Thomas, 487 So. 2d

1043, 1044-45 (Fla. 1986). Where there are not multiple victims or multiple


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injuries to a single victim and the defendant does not fire the gun, consecutive

sentences are impermissible. Christian, 692 So. 2d at 890.

      In 1997, we considered the application of section 775.087(2)(a), Florida

Statutes (1993), where a defendant fired multiple gun shots at multiple victims

during a single criminal episode, concluding:

            As a general rule, for offenses arising from a single episode,
      stacking is permissible where the violations of the mandatory
      minimum statutes cause injury to multiple victims, or multiple injuries
      to one victim. The injuries bifurcate the crimes for stacking purposes.
      The stacking of firearm mandatory minimum terms thus is permissible
      where the defendant shoots at multiple victims, and impermissible
      where the defendant does not fire the weapon.

Christian, 692 So. 2d at 890-91. In other words, we determined that consecutive

sentences are permissible when a single criminal episode involves either multiple

victims or multiple injuries to one victim.

      In Williams v. State, 186 So. 3d 989 (Fla. 2016), we considered the

application of section 775.087(2)(d), Florida Statutes (2008), where a defendant

fired shots into the air at four victims in a single episode. As with the defendant in

Christian, consecutive sentences were permissible because there were multiple

victims and the gun was fired. However, we clarified that the statute did not

mandate, only permitted, consecutive sentences in that case because they occurred

during a single criminal episode. Specifically, we held “that, under the plain

language of section 775.087(2)(d), consecutive mandatory minimum sentences are



                                         -4-
not required, but are permissible, if the sentences arise from a single criminal

episode.” Id. at 994.1

      Together, these cases state that section 775.087(2)(d), Florida Statutes

(2014), mandates consecutive sentences for specified crimes committed in separate

criminal episodes and permits consecutive sentences at judicial discretion for

specified crimes committed in a single criminal episode with either multiple

victims or injuries. Section 775.087(2)(d) neither mandates nor permits

consecutive sentences for crimes committed in a single criminal episode with a

single victim or injury in which a firearm is not discharged.

      Miller was charged with multiple offenses stemming from a single criminal

episode involving a single victim in which the gun was not discharged. Under

these facts, consecutive sentences are impermissible. Accordingly, we quash the

decision in Miller and approve the decision in Torres-Rios and remand to the First

District for proceedings consistent with this decision.

      It is so ordered.

PARIENTE, LEWIS, and LABARGA, JJ., concur.
POLSTON, J., dissents with an opinion.
LAWSON, J., dissents with an opinion, in which CANADY, C.J., concurs.


      1. The First District asserted that we have not addressed a case factually
similar to this one. Miller, 224 So. 3d at 852. This reading of our decision in
Williams ignores the precedent on which Williams relied. This Court does not
reverse itself sub silentio and the cases upon which Williams relied are still good
law.

                                         -5-
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.

POLSTON, J., dissenting.

      For the reasons I have explained in my dissent in Williams v. State, 186 So.

3d 989, 996 (Fla. 2016) (Polston, J., dissenting), I have concluded that “[t]he plain

language of section 775.087(2)(d) mandates consecutive sentencing.” Therefore, I

would deny Miller relief, and I respectfully dissent.

LAWSON, J., dissenting.

      This case presents an issue of statutory construction. For the reasons

explained by Justice Canady in Walton v. State, 208 So. 3d 60, 68-70 (Fla. 2016)

(Canady, J., dissenting), and Williams v. State, 186 So. 3d 989, 995-96 (Fla. 2016)

(Canady, J., concurring in result), I conclude that section 775.087(2)(d), Florida

Statutes, neither mandates nor prohibits consecutive sentences for crimes

committed in a single criminal episode with a single victim or injury. Accordingly,

I would affirm the result reached by the First District below.

CANADY, C.J., concurs.

Application for Review of the Decision of the District Court of Appeal – Certified
Direct Conflict of Decisions

      First District - Case No. 1D13-5503

      (Duval County)

Andy Thomas, Public Defender, and Pamela D. Presnell, Assistant Public
Defender, Second Judicial Circuit, Tallahassee, Florida,

                                        -6-
      for Petitioner

Pamela Jo Bondi, Attorney General, Trisha M. Pate and Kaitlin R. Weiss, Assistant
Attorneys General, Tallahassee, Florida,

      for Respondent




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