Filed: May 16, 2018
Latest Update: Mar. 03, 2020
Summary: NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT BYRON JENNINGS, ) ) Appellant, ) ) v. ) Case No. 2D15-4451 ) STATE OF FLORIDA, ) ) Appellee. ) ) Opinion filed May 16, 2018. Appeal from the Circuit Court for Polk County; Wayne Durden, Judge. Howard L. Dimmig, II, Public Defender, and Benedict P. Kuehne, Special Assistant Public Defender, Bartow, for Appellant. Pamela Jo Bondi, Attorney General, Tallahassee,
Summary: NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT BYRON JENNINGS, ) ) Appellant, ) ) v. ) Case No. 2D15-4451 ) STATE OF FLORIDA, ) ) Appellee. ) ) Opinion filed May 16, 2018. Appeal from the Circuit Court for Polk County; Wayne Durden, Judge. Howard L. Dimmig, II, Public Defender, and Benedict P. Kuehne, Special Assistant Public Defender, Bartow, for Appellant. Pamela Jo Bondi, Attorney General, Tallahassee, ..
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
BYRON JENNINGS, )
)
Appellant, )
)
v. ) Case No. 2D15-4451
)
STATE OF FLORIDA, )
)
Appellee. )
)
Opinion filed May 16, 2018.
Appeal from the Circuit Court for
Polk County; Wayne Durden, Judge.
Howard L. Dimmig, II, Public Defender,
and Benedict P. Kuehne, Special
Assistant Public Defender, Bartow, for
Appellant.
Pamela Jo Bondi, Attorney General,
Tallahassee, and Andrew Tetreault and
Jason M. Miller Assistant Attorneys
General, Tampa, for Appellee.
CRENSHAW, Judge.
Byron Jennings appeals the convictions and sentences imposed after a
jury found him guilty of one count of armed kidnapping and one count of sexual
battery with a deadly weapon. Jennings was sentenced to fifteen years'
imprisonment for the armed kidnapping, which included a ten-year mandatory
minimum sentence, and to twenty-five years' imprisonment for the sexual assault
with a deadly weapon, which included a twenty-five-year mandatory minimum
sentence; the trial court ordered the sentences to be served consecutively. We
affirm Jennings' convictions without comment, but because the trial court improperly
imposed consecutive mandatory minimum sentences pursuant to section
775.087(2)(d), Florida Statutes (2014), we reverse and remand for resentencing.
With regard to the sentencing issue, the State properly conceded error
in its brief. See Williams v. State,
186 So. 3d 989, 993 (Fla. 2016) (holding that
consecutive sentences of mandatory minimum terms for multiple firearm offenses
are impermissible if the offenses arose from the same criminal episode and the
firearm was not discharged). In the instant case, the trial court imposed consecutive
mandatory minimum sentences for the armed kidnapping and the sexual assault
with a deadly weapon charges. The State acknowledges that the trial court erred in
imposing consecutive mandatory minimum sentences because there was no finding
that the weapon was discharged, and the offenses arose out of the same criminal
episode. See id; Church v. State,
967 So. 2d 1073 (Fla. 2d DCA 2007). Based on
this error, we reverse and remand for resentencing.
Affirmed in part, reversed in part, and remanded for resentencing.
CASANUEVA and VILLANTI, JJ., Concur.
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