            FIRST DISTRICT COURT OF APPEAL
                   STATE OF FLORIDA
                 _____________________________

                         No. 1D18-663
                 _____________________________

GREGORY L. MATTOX JR.,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                 _____________________________


On appeal from the Circuit Court for Duval County.
Tatiana Salvador, Judge.

                          July 22, 2019


LEWIS, J.

     Appellant, Gregory L. Mattox, Jr., appeals his judgment and
sentences for two counts of armed robbery, raising three
arguments on appeal, only one of which merits discussion.
Appellant argues, and we agree, that the trial court erred in
finding that it was required to run Appellant’s twenty-five-year
sentences on the armed robbery offenses consecutively to his
fifteen-year sentence in his violation of probation (“VOP”) case as
opposed to running only his two minimum mandatory ten-year
terms on the armed robbery offenses consecutively to the VOP
sentence. For the following reasons, we reverse Appellant’s
sentences and remand for resentencing.
                          Factual History

     The State charged Appellant with two counts of armed
robbery, which allegedly occurred in June of 2007. Appellant was
found guilty in 2009. The trial court sentenced him on both counts
to “25 years Florida State Prison, with a 10 year minimum
mandatory,” with the sentences to run concurrently. These
sentences were to run concurrently with a VOP case in which
Appellant was sentenced at the same time to fifteen years’
imprisonment. We subsequently reversed Appellant’s armed
robbery convictions based upon a trial error and remanded for
further proceedings. See Mattox v. State, 56 So. 3d 895 (Fla. 1st
DCA 2011).

     On retrial, the jury found Appellant guilty as charged,
specifically finding that he carried and possessed a firearm during
the commission of the robberies. During the sentencing hearing,
the prosecutor requested a thirty-five-year sentence. The trial
court stated, “The minimum mandatories have to run consecutive,
as I understand it.” After affirmatively responding, the prosecutor
stated, “The min mans are required to run consecutive to each
other and to any other sentence that’s imposed.” The trial court
later set forth:

         I’m going to adjudicate you guilty of each of those
    offenses and sentence you on each count to 25 years
    Florida State Prison, with the required 10 year minimum
    mandatory sentences as to each count and the 10 year
    minimum mandatory sentences will run consecutive, as
    they are required to do under the law, and pursuant to
    Section 775.087 of Section (3)d, run consecutive to the 15
    years that you received in your violation of probation case
    ....

In response to the prosecutor’s question of whether the court was
running each count consecutively, the trial court stated, “The
counts are not running consecutive to each other. The minimum
mandatories I’m running consecutive to each other, but I’m
running that full sentence consecutive to the violation of
probation.” When the prosecutor asked, “So 40 years with a 20
year minimum mandatory, 25 with a 15,” the court replied, “Yes.”

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     While his appeal was pending, Appellant filed a Motion to
Correct Sentencing Error, arguing that the trial court erred in
running the ten-year minimum mandatory terms consecutively to
one another and in running the twenty-five-year sentences, as
opposed to just the minimum mandatory terms, consecutively to
the fifteen-year VOP sentence. In the Order Granting in Part and
Denying in Part Defendant’s Motion to Correct Sentencing Errors,
the trial court agreed with Appellant’s first argument and ordered
the clerk to enter an amended judgment and sentence to “reflect
that the ten-year mandatory minimum term of imprisonment for
Counts One and Two will run concurrently.”

     As to what it considered ground two of Appellant’s motion, the
trial court set forth:

         Defendant contends the Court, in determining it had
    no discretion, imposed an illegal sentence in ordering his
    sentences in the instant case to run consecutively to his
    fifteen-year sentence . . . . Alternatively, Defendant
    contends the Court, in determining it had no discretion,
    imposed an illegal sentence in ordering his sentences in
    the instant case, as opposed to only the ten-year
    mandatory minimum portions of the sentences, to run
    consecutively to his fifteen-year sentence . . . .
         Defendant’s position is without merit as section
    775.087(2)(d) requires consecutive sentencing for
    Defendant’s separate felonies. This section provides:

         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, 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.


                                 3
§ 775.087(2)(d) (emphasis added). As written, paragraph
(2)(d) contemplates two distinct imprisonment terms: a
term imposed for a qualifying felony pursuant to
subsection (2), and a term imposed for a non-qualifying
felony. This paragraph “expressly mandates . . . that a
qualifying felony sentence run ‘consecutively to’ any
sentence imposed for a non-qualifying felony.” . . .

     In the instant case, Defendant was sentenced to
concurrent terms of twenty-five years’ imprisonment for
his Armed Robbery convictions. . . . In Case 2393,
Defendant was sentenced to a term of fifteen years’
imprisonment for Possession of a Firearm by a Juvenile
Delinquent Found to Have Committed a Felony Act. The
offense of armed robbery is a “qualifying” offense as it is
specifically listed in the 10-20-Life statute. . . .
Conversely, “the offense of possession of a firearm by a
delinquent is not specifically listed in the 10-20-Life
statutes as one for which a court is authorized to impose
a minimum mandatory sentence,” making it a “non-
qualifying” offense. . . . Thus, the Court was required to
run the sentences consecutively. . . .

     Defendant’s alternative argument is also without
merit. Essentially, Defendant argues the Court could
have sentenced [him] as follows: to twenty-five years in
this case, to run concurrently to the fifteen years in Case
2393, with the ten-year mandatory minimums to run
consecutively to the fifteen years. However, “imposing a
prison sentence that is part concurrent with and part
consecutive to another prison sentence is a punishment
that no judge under the entire body of sentencing statutes
could possibly inflict under any set of factual
circumstances.” . . . . It is also error for a sentence to be
structured so that the defendant “serves the mandatory
sentence at the end of his total prison term.” . . . . Thus,
since the Court was required to run Defendant’s
mandatory minimum sentence in the instant case
consecutively to his fifteen-year sentence in Case 2393,
the Court also did not have discretion to run the balance


                             4
    of his twenty-five-year sentences concurrently to his
    fifteen-year sentence.

This appeal followed.

                             Analysis

     Appellant claims that the trial court erred in determining that
it had to run his twenty-five-year sentences consecutively to his
fifteen-year VOP sentence as opposed to running only the ten-year
minimum mandatory terms consecutively to the VOP sentence.
Motions to correct sentencing errors involve purely legal issues
that are reviewable de novo. Ray v. State, 68 So. 3d 346, 347 (Fla.
1st DCA 2011). Resentencing is warranted where a defendant
received a legal sentence but the trial court misapprehended its
sentencing discretion under the relevant statutes. Pitts v. State,
202 So. 3d 882, 884 (Fla. 4th DCA 2016).

     Appellant’s argument requires us to analyze section 775.087,
Florida Statutes, commonly referred to as the “10/20/Life” statute.
When construing a statute, courts must strive to effectuate the
Legislature’s intent. Kasischke v. State, 991 So. 2d 803, 807 (Fla.
2008). To determine intent, courts must look first to the statute’s
plain language. Id. If a statute is clear and unambiguous, courts
will not look behind the plain language. Id.

     Section 775.087(2)(a)1, Florida Statutes (2006), requires a
minimum mandatory sentence of ten years’ imprisonment if a
defendant committed an enumerated offense and the person
possessed a firearm or destructive device. Subsection (2)(a)2.
provides for a twenty-year minimum term of imprisonment where
a firearm or destructive device is discharged, and subsection
(2)(a)3. provides for a term of imprisonment of not less than
twenty-five years and not more than life imprisonment where a
firearm or destructive device is discharged and causes death or
great bodily harm. Subsection (2)(d) sets forth:

    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
                                 5
    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.

(Emphasis added). The supreme court has explained that
subsection (2)(d) “contemplates two distinct imprisonment terms:
a term imposed for a qualifying felony pursuant to subsection (2),
and a term imposed for a non-qualifying felony” and that “[t]he last
sentence of paragraph 2(d) further delineates the manner in which
these distinct imprisonment terms are to be served in relation to
one another” by “expressly mandat[ing] only that a qualifying
felony sentence run ‘consecutively to’ any sentence imposed for a
non-qualifying felony.” Williams v. State, 186 So. 3d 989, 992 (Fla.
2016).

     The trial court relied upon Williams in determining that it
was required to run the concurrent twenty-five-year sentences it
imposed for the armed robbery offenses consecutively to the
fifteen-year sentence in Appellant’s VOP case, as opposed to only
running the ten-year minimum mandatory terms consecutively to
that sentence. However, while Williams supports the court’s
determination that Appellant’s VOP offense was a non-qualifying
offense pursuant to section 775.087(2)(d), Williams does not
support the court’s position that it had no discretion to run “the
balance” of Appellant’s twenty-five-year sentences concurrently to
the VOP sentence.

     As Appellant contends, the plain language of subsection (2)(d)
speaks to “any term of imprisonment provided for in this
subsection.” The only terms of imprisonment provided for in
subsection (2) are minimum mandatory terms. Importantly,
section 775.087(2)(b) provides that a court is not “prevent[ed] . . .
from imposing a longer sentence of incarceration as authorized by
law in addition to the minimum mandatory sentence.” Section
775.087(2)(c) sets forth in part that if the “mandatory minimum
terms of imprisonment pursuant to this section are less than the
sentences that could be imposed as authorized by s. 775.082, s.
775.084, or the Criminal Punishment Code . . . then the sentence
imposed by the court must include the mandatory minimum term

                                 6
of imprisonment as required in this section.” While the trial court
imposed ten-year minimum mandatory terms under the 10/20/Life
statute for Appellant’s armed robbery offenses, as it was required
to do, it sentenced him to an overall twenty-five-year sentence on
both offenses. Appellant is correct that nothing in section
775.087(2)(d) expressly prohibits the non-minimum mandatory
component of a sentence to run concurrently to a non-qualifying
sentence. Indeed, when the prosecutor asked below, “Do the
sentences run consecutive or just the min mans,” the trial court
replied, “No, I believe it’s the minimum mandatories that run
consecutively.” The prosecutor later stated, “The min mans are
required to run consecutive . . . to any other sentence that’s
imposed.” In the order on appeal, the trial court recognized such
by setting forth in part, “[T]he Court was required to run
Defendant’s mandatory minimum sentences in the instant case
consecutively to his fifteen-year sentences [in the VOP case].”

     Notwithstanding its recognition of what section 775.087(2)(d)
required, the trial court reasoned that because it had to run the
minimum mandatory terms consecutively to the VOP sentence, it
“did not have discretion to run the balance of [appellant’s] twenty-
five-year sentences concurrently to his fifteen-year sentence.” In
reaching this conclusion, the trial court relied upon Stroman v.
State, 837 So. 2d 1070, 1070 (Fla. 2d DCA 2003), where the
appellant was sentenced to three concurrent fifteen-year habitual
felony offender sentences for robberies and to five years for a grand
theft offense. On the grand theft offense, the trial court sentenced
the appellant to “five years in prison with three of those years
concurrent with the concurrent fifteen-year habitual felony
offender prison sentences, and two of those five years consecutive
to the habitual felony offender sentences.” Id. The Second District
held that “imposing a prison sentence that is part concurrent with
and part consecutive to another prison sentence is a punishment
that no judge under the entire body of sentencing statutes could
possibly inflict under any set of factual circumstances.” Id. at
1071.

     We disagree with the trial court’s reasoning and find its
reliance upon Stroman to be misplaced. Had the trial court not
been required to impose minimum mandatory terms on
Appellant’s armed robbery offenses, then, as the court reasoned, it

                                 7
would not have been permitted to run portions of the twenty-five-
year sentences both concurrently and consecutively to another
sentence. However, section 775.087, which, as stated, expressly
contemplates a potential sentence that exceeds a minimum
mandatory term of imprisonment, mandates that any required
minimum mandatory term run consecutively to any other term of
imprisonment imposed for a non-qualifying offense. In Pitts v.
State, 202 So. 3d 882, 884 (Fla. 4th DCA 2016), the Fourth District
addressed the issue of whether the trial court had the discretion to
impose a minimum mandatory sentence of twenty-five years under
section 775.087 even though the appellant was receiving a
mandatory life sentence under another statute. The trial court,
based upon the State’s representation that the minimum
mandatory sentence had to be coextensive with the underlying
sentence, sentenced the appellant to life imprisonment with a
minimum mandatory term of life. Id. at 883. In reversing, the
Fourth District cited McDonald v. State, 957 So. 2d 605 (Fla. 2007),
for the proposition that the 10/20/Life statute “‘clearly expresses
the Legislature’s intent’ that a 10/20/Life sentence ‘be imposed
concurrently even where another statutory sentence is greater.’” ∗
The Fourth District, after noting that the trial court was required
to sentence the appellant to life imprisonment without the
possibility of parole, set forth, “But the trial court was also
required to impose a concurrent mandatory minimum sentence
under the 10/20/Life statute, even if the 10/20/Life sentence was
less than the sentence to be imposed under section 775.082(1).” Id.

     Here, the trial court chose to sentence Appellant to twenty-
five years’ imprisonment on the armed robbery offenses pursuant
to section 775.082. It was required, however, pursuant to the
10/20/Life statute to include what has been described both in
McDonald and Pitts as a “concurrent” minimum mandatory term
on both offenses. Ordering only the ten-year minimum mandatory
terms, as opposed to the twenty-five-year sentences, to run
consecutively to Appellant’s VOP sentence would not cause
Appellant to serve his sentences in fragmented bits and pieces.



    ∗
     In making this statement, the supreme court cited to section
775.087(2)(c). See McDonald, 957 So. 2d at 610.

                                 8
Instead, doing so would comport with the requirements of the
10/20/Life statute.

     With that said, we do agree with the trial court that it would
have been error to structure the sentences so that Appellant would
serve the minimum mandatory terms at the end of his total prison
term. Section 775.087(2)(b) provides in part that a “defendant is
not eligible for statutory-gain time under s. 944.275 or any form of
discretionary early release, other than pardon or executive
clemency, or conditional medical release . . . prior to serving the
minimum sentence.” See also Pioquinto v. State, 656 So. 2d 552,
553 (Fla. 2d DCA 1995) (holding that it was error for the
appellant’s sentences to be structured so that he would serve the
mandatory sentence at the end of his prison term because it
deprived the appellant of the possible benefit of control release on
the nonmandatory portion of his sentence). We see no reason
though why the trial court could not structure the sentences so
that Appellant would serve his ten-year concurrent minimum
mandatory terms prior to serving his fifteen-year VOP sentence.
See Daniels v. State, 664 So. 2d 366, 366 (Fla. 3d DCA 1996) (noting
that the trial court imposed a seven-year sentence with a
minimum mandatory sentence of three years to be served
consecutively to a seven-year sentence with no minimum
mandatory portion and that the State conceded that the sentence
with the minimum mandatory provision should have been ordered
to be served first).

                           Conclusion

     In conclusion, while we affirm Appellant’s armed robbery
convictions, we reverse his sentences based upon the trial court’s
erroneous determination that it had no discretion to impose only
the ten-year minimum mandatory terms consecutively to his
fifteen-year VOP sentence. The case is remanded for resentencing.

    AFFIRMED in part, REVERSED in part, and REMANDED for
resentencing.

B.L. THOMAS and ROBERTS, JJ., concur.




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                _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________


Matthew R. McLain of McLain Law, P.A., Longwood, for Appellant.

Ashley Moody, Attorney General, and Quentin Humphrey,
Assistant Attorney General, Tallahassee, for Appellee.




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