Full Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT STATE OF FLORIDA, ) ) Appellant, ) ) v. ) Case No. 2D18-1844 ) MALIK JOHNS, ) ) Appellee. ) ) Opinion filed March 4, 2020. Appeal from the Circuit Court for Pasco County; Susan G. Barthle, Judge. Ashley Moody, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appellant. Howard L. Dimmig, II, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellee. LaROSE, Judge. The State appeals an order granting Malik Johns' motion for reduction or modification of sentence. See Fla. R. Crim. P. 3.800(c). The trial court lacked the authority to modify the mandatory minimum sentence it originally imposed, rendering the subsequent sentence illegal. Consequently, we have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A) (establishing this court's jurisdiction to review final orders, including the imposition of sentence); 9.140(c)(1)(M) (authorizing the State to appeal an order "imposing an unlawful or illegal sentence"). We reverse and remand with directions that the trial court reinstate Mr. Johns' original sentence. Background In late 2016, Mr. Johns pleaded guilty to attempted home invasion robbery with a firearm, a first-degree felony. Mr. Johns, just days shy of his twenty-first birthday, requested a prompt sentencing hearing to qualify for youthful offender sanctions. See § 958.04(1)(b), Fla. Stat. (2015) (providing that a trial court may impose youthful offender sanctions "if the offender is younger than 21 years of age at the time sentence is imposed"). The trial court proceeded to sentence Mr. Johns in mid-December 2016. The trial court could have sentenced him as a youthful offender or as an adult pursuant to Chapter 775. Emphasizing the violent nature of the offense, the trial court sentenced Mr. Johns as an adult to a ten-year mandatory minimum prison term. See § 775.087(2)(a)(1), Fla. Stat. (2015). Mr. Johns appealed his judgment and sentence; we affirmed. Johns v. State, 241 So. 3d 811 (Fla. 2d DCA 2018) (table decision). Mr. Johns then filed a motion for reduction or modification of sentence. See Fla. R. Crim. P. 3.800(c). Although he was then over the age of twenty-one, Mr. Johns asked the trial court to sentence him as a youthful offender. The trial court granted Mr. Johns' motion, sentencing him to six years in prison. The State appealed. Analysis I. Jurisdiction Mr. Johns challenges our jurisdiction. See Childers v. State, 972 So. 2d 307, 309 (Fla. 2d DCA 2008) ("A rule 3.800(c) motion is directed to a circuit court's -2- absolute discretion, and the court's ruling cannot be appealed."). However, the State may appeal an order granting a rule 3.800(c) motion if the order imposes "an unlawful or illegal sentence or . . . a sentence outside the range permitted by the sentencing guidelines." Fla. R. App. P. 9.140(c)(1)(M); see also § 924.07(1)(e), Fla. Stat. (2018) (authorizing the State to appeal a sentence "on the ground that it is illegal"); State v. Brooks, 890 So. 2d 503, 504 (Fla. 2d DCA 2005) (holding that an order granting a rule 3.800(c) motion was appealable when mitigated sentence departed from the minimum mandatory); State v. Swett, 772 So. 2d 48, 50-51 (Fla. 5th DCA 2000) (holding that an order granting a rule 3.800(c) motion was appealable when mitigated sentence departed from the sentence imposed pursuant to a plea bargain). As explained below, the trial court could not impose the modified sentence under the relevant sentencing statutes. Thus, we have jurisdiction. Cf. Carter v. State, 786 So. 2d 1173, 1181 (Fla. 2001) ("[A] a sentence is 'illegal' if it 'imposes a kind of punishment that no judge under the entire body of sentencing statutes could possibly inflict under any set of factual circumstances . . . .' " (quoting Blakley v. State, 746 So. 2d 1182, 1187 (Fla. 4th DCA 1999))). II. Merits Rule 3.800(c) does not allow the modification or reduction of a sentence when "the trial judge has imposed the minimum mandatory sentence or has no sentencing discretion." Originally, the trial court sentenced Mr. Johns as an adult to a ten-year minimum prison term. As a result, rule 3.800(c) does not permit retroactive reclassification as a youthful offender to achieve a different sentence. See State v. Paulino, 696 So. 2d 425, 426 (Fla. 2d DCA 1997). -3- Paulino is indistinguishable from the case before us. In Paulino, this court reversed a sentencing modification that classified the defendant as a youthful offender after the trial court had initially imposed mandatory minimum adult sanctions. Id. We rejected the argument now raised by Mr. Johns: Paulino attempts to avoid this result on the theory that the court could have sentenced him as a youthful offender under chapter 958, Florida Statutes (1993), and, under that chapter, would not have been required to impose the minimum mandatory term. See § 958.04, Fla. Stat. (1993). We reject his position. At the September 1994 sentencing hearing, the court specifically refused to treat Paulino as a youthful offender. Once the court elected to sentence Paulino as an adult, it had to impose the minimum mandatory term. Paulino, 696 So. 2d at 425-26. The Third District has taken a different view and certified conflict with Paulino. See State v. Richardson, 766 So. 2d 1111, 1113 (Fla. 3d DCA 2000), review denied, 786 So. 2d 1189 (Fla. 2001). In Richardson, the Third District emphasized that the limitation of rule 3.800(c) when "the trial judge has imposed the minimum mandatory sentence" did not apply to cases where the defendant could be sentenced to adult sanctions or youthful offender sanctions. Richardson, 766 So. 2d at 1112-13. Because the trial court could have originally imposed a sanction other than the mandatory minimum by classifying the defendant as a youthful offender, the trial court retained that discretion during sentencing modification. Id. at 1113. The Third District explained: The relevant sentence in 3.800(c) refers to cases where there is only one sentence available for a defendant—an adult sentence with a statutory minimum mandatory. Obviously, in that instance, where a defendant does not meet the youthful offender criteria, the court must sentence defendant to an adult sanction, and it must impose the minimum mandatory. However, if the sentencing judge has the discretion to sentence the defendant as a youthful -4- offender, Rule 3.800(c) contains no language divesting the sentencing judge of this discretion upon consideration of a mitigation motion. Id. The Richardson court highlighted that the defendant was eligible for youthful offender sentencing because he satisfied the statutory criteria. Id. The statute required that the defendant be "younger than 21 years of age at the time sentence is imposed." § 958.04(1)(b), Fla. Stat. (1995). Unlike our case, the timing of the rule 3.800(c) motion and the sentencing in Richardson had no impact upon the defendant's eligibility as a youthful offender because he was still under twenty-one. Richardson, 766 So. 2d at 1112. In contrast, when the trial court modified Mr. Johns' sentence, he had already turned twenty-one. Section 958.04(1)(b) provides that a trial court may impose youthful offender sanctions only "if the offender is younger than 21 years of age at the time sentence is imposed." Thus, Mr. Johns was no longer eligible for youthful offender sanctions. Finally, we note that the recent amendment to the Youthful Offender statute does not change our analysis. Effective October 1, 2019, the trial court may impose youthful offender sanctions if the "crime was committed before the defendant turned 21 years of age." § 958.04(1)(b) Fla. Stat. (2019). This statute, however, was not in effect when Mr. Johns committed the offense. Cf. Jimenez v. Jones, 261 So. 3d 502, 503-04 (Fla. 2018) ("Prior to its recent amendment, article X, section 9, prohibited the Legislature not just from making the repeal of a statute retroactive, but also from making an amendment to a criminal statute applicable to pending prosecutions or sentences. That prohibition will be removed effective January 8, 2019, meaning that -5- there will no longer be any provision in the Florida Constitution that would prohibit the Legislature from applying an amended criminal statute retroactively to pending prosecutions or sentences. However, nothing in our constitution does or will require the Legislature to do so, and the repeal of the prohibition will not require that they do so."). Conclusion We reverse and remand with directions to the trial court to reinstate the original sentence. Reversed and remanded for further proceedings. CASE, JAMES R., ASSOCIATE JUDGE, Concurs. SALARIO, J., Concurs in result only. -6-