Full Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________ No. 1D18-1358 _____________________________ JACOB OMAR HILL, Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Duval County. Linda F. McCallum, Judge. March 3, 2020 ROBERTS, J. Below, the appellant was charged with and convicted of second-degree murder, count I; attempted second-degree murder, count II; and possession of a firearm by convicted felon, count III. On appeal, the appellant raises two issues. In his first issue, the appellant argues that the trial court erred when it denied his motion for a new trial. We find no reversible error with the trial court’s decision to deny the appellant’s motion and affirm without further comment. In his second issue, the appellant argues that the trial court violated his constitutional right to be free from double jeopardy by increasing the minimum mandatory portion of his sentence on count II. We agree. During the sentencing hearing, the trial court initially sentenced the appellant to life in prison with a minimum mandatory sentence of twenty-five years in prison. Six days later, the trial court realized that it had imposed an illegal sentence for count II and resentenced the appellant to life in prison with a minimum mandatory sentence of life in prison. The appellant preserved this issue for review by filing a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). Martinez v. State, 123 So. 3d 701, 703 (Fla. 1st DCA 2013). The trial court ultimately denied the motion. We review the legality of an appellant’s sentence de novo. Johnson v. State, 260 So. 3d 506, 506 (Fla. 1st DCA 2018) (citing Washington v. State, 199 So. 3d 1110, 1111 (Fla. 1st DCA 2016)). The appellant argues that this Court’s decision in Kelly v. State, 137 So. 2d 2 (Fla. 1st DCA 2014) (abrogated on other grounds by Hatten v. State, 203 So. 3d 142 (Fla. 2016)), controls. In Kelly, Mr. Kelly was sentenced initially to forty years in prison with a minimum mandatory sentence of twenty-five years for each of his aggravated battery charges. Kelly, 137 So. 3d at 2- 3. During his appeal, Mr. Kelly filed a motion to correct sentencing error, and the trial court granted the motion in part and denied the motion in part. The trial court agreed with him that because the verdict form was worded in such a way as to make the use of the firearm part of the aggravated battery charges, making the aggravated batteries second-degree felonies rather than first- degree felonies. Id. at 3. However, the trial court did not agree with Mr. Kelly that the only lawful sentence it could impose was a twenty-five-year minimum mandatory sentence for each aggravated battery charge. Id. at 3-4. The trial court determined that in order to effectuate the sentence it was attempting to achieve, without violating the defendant’s right not to have his sentence increased, it could require Mr. Kelly to serve a minimum mandatory sentence of 37.75 years in prison. Id. The trial court reasoned that because Mr. Kelly would have to serve at least 85% of his forty-year sentence, Mr. Kelly would have to serve an additional 12.75 years in prison after he served his twenty-five- year minimum mandatory sentence. Id. When analyzing Mr. Kelly’s new sentences, this Court found that there were two issues that it had to address regarding Mr. Kelly’s sentences. Id. The 2 relevant issue to the instant case is that the trial court could not change the minimum mandatory sentence because the twenty- five-year minimum mandatory sentence initially imposed was lawful. Id. at 4-5. Because this Kelly sentencing issue has not been abrogated by Hatten, we are bound to follow it. The portion of Kelly that was overturned by Hatten dealt with whether a trial court could sentence a defendant to a term of years beyond the statutory maximum when that sentence was not subject to the 10-20-Life statute. Hatten, 203 So. 3d at 145. The Florida Supreme Court held that a trial court could not sentence a defendant beyond the statutory maximum absent additional statutory authority. Id. at 146. Thus, the supreme court quashed this Court’s underlying decision, ∗ which was based on the second sentencing issue stated in Kelly, and required the defendant’s case to be remanded for resentencing. Id. In the instant case, the appellant initially received a lawful minimum mandatory sentence. Therefore, the trial court erred when it increased that portion of the appellant’s sentence. With regards to the appellant’s overall sentence, he was found guilty of attempted second-degree murder, which is a second-degree felony. See §§ 782.04(2) & 777.04(4)(c), Fla. Stat. (2015). Because he used a firearm during the commission of his offense, he was subject to enhancement to a first-degree felony. See § 775.087(1), Fla. Stat. (2015). A first-degree felony carries a maximum sentence of thirty years in prison. See § 775.082(3)(b)1., Fla. Stat. (2015). Accordingly, we reverse the appellant’s sentence on count II and remand the case to the trial court for it to impose a sentence up to thirty years in prison with a mandatory minimum sentence of twenty-five years in prison. See § 775.087(2)(a)3., Fla. Stat. (2015). AFFIRMED in part, REVERSED in part, and REMANDED. WOLF and JAY, JJ., concur. ∗ Hatten v. State, 152 So. 3d 849 (Fla. 1st DCA 2014). 3 _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________ Andy Thomas, Public Defender, and Kathryn Lane, Assistant Public Defender, Tallahassee, for Appellant. Ashley Moody, Attorney General, and Tabitha Herrera, Assistant Attorney General, Tallahassee, for Appellee. 4