DARRYLE T. COOK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Darryle Cook appealed consecutive three-year mandatory minimum sentences for two robbery convictions. The court held that stacking firearm mandatory minimum sentences is impermissible where the defendant fires the weapon only once, even if multiple victims are involved, and vacated the consecutive sentencing requirement.
The court held that stacking of firearm mandatory minimum sentences is impermissible where the defendant fires the weapon only once, even if multiple victims are threatened. The court vacated the requirement that Cook serve consecutive sentences for Counts V and VI, requiring him to serve those sentences concurrently instead.
[1] Stacking of mandatory minimum terms for firearm use during a single criminal episode is permissible when the defendant causes injury to multiple victims or multiple injur…
[2] Stacking of mandatory minimum terms for firearm use during a single criminal episode is impermissible when the defendant does not fire the weapon.
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Join FLexlaw to unlock all legal intelligence“stacking is permissible for offenses arising from a single episode where the violations of the mandatory minimum statutes cause injury to multiple victims or multiple injuries to one victim because the injuries bifurcate the crimes for stacking purposes”
Establishes the general rule for when stacking of mandatory minimum sentences is permissible
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Join FLexlaw to unlock all legal intelligenceCook participated in an armed robbery of a restaurant. During the robbery, Mary Mullins was shot in the back and robbed, Patricia Crew was robbed (but…
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PETERSON, J.
Darryle T. Cook appeals the imposition of consecutive three-year minimum mandatory sentences for two counts of robbery with a firearm and mask under section 812.13(2)(a), Florida Statutes (1996). The sentences were imposed for Cook’s participation in a robbery of a restaurant. During the robbery, Mary Mullins was shot in the back and robbed, Patricia Crew was robbed, and the restaurant employing them was robbed.
We find that the sentences imposed for the two counts, Counts V and VI of the information, were erroneously stacked.
Section 775.087(2), Florida Statutes (1996), authorizes imposition of a three-year mandatory minimum term for use of a firearm during the commission of certain crimes including robbery. As a general rule, stacking is permissible for offenses arising from a single episode where the violations of the mandatory minimum statutes cause injury to multiple victims or multiple injuries to one victim because the injuries bifurcate the crimes for stacking purposes. See State v. Christian, 692 So. 2d 889, 890-91 (Fla.1997) (citations omitted).
Thus, the stacking of firearm mandatory minimum terms is permissible where the defendant shoots at multiple victims. See id. (citing State v. Thomas, 487 So. 2d 1043 (Fla.1986)); Marta-Rodriguez v. State, 699 So. 2d 1010, 1012 (Fla.1997) (stacking permissible where defendant shot and killed two victims during the same episode).
However, stacking is impermissible where the defendant does not fire the weapon. See id. (citing State v. Ames, 467 So. 2d 994 (Fla.1985); Palmer v. State, 438 So. 2d 1 (Fla.1983)); see also McGouirk v. State, 493 So. 2d 1016 (Fla. 1986) (disapproving the stacking of one ten-year explosive device mandatory minimum term with one three-year destructive device mandatory minimum term where defendant’s sole act was to place bomb under family’s trailer, injuring one person).
The State argues that although Cook’s conviction on Counts V and VI arose out of the same armed robbery at the restaurant, imposition of consecutive minimum mandatory sentences was proper because the convictions involved separate victims.
The record reveals that there were indeed three victims of the armed robbery: Mullins, Crews, and the restaurant. Both Mullins and Crews were threatened at gunpoint; however, the gun was only fired once and the bullet only struck Mullins. Under the reasoning in Ames and McGo-uirk, Cook’s minimum mandatory sentences could not be stacked because the gun was only fired once. Although Crews was assaulted and threatened, she was not physically injured and arguably not a victim for purposes of stacking the minimum mandatory sentences.
Therefore, imposition of minimum mandatory sentences under these circumstances was erroneous.
In urging this Court to affirm Cook’s sentence, the State argues that any error was harmless because Cook did not show how he would be adversely affected by the imposition of consecutive minimum mandatories. The imposition of consecutive minimum mandatories affects and can restrict the accrual of gain time under the sentencing guidelines. See State v. Suarez, 485 So. 2d 1283, 1283 (Fla.1986). Hence, the adverse effect is patent and can be corrected on direct appeal. See Maddox v. State, 760 So. 2d 89, 99 (Fla.2000).
We affirm the convictions and sentences imposed for Cook’s participation in the multiple robberies with the exception that we vacate that portion of the sentencing order that requires Cook to serve consecutive sentences for Counts V and VI. He shall serve those sentences concurrently.
AFFIRMED IN PART; VACATED IN PART.
GRIFFIN and ORFINGER, R.B., JJ„ concur.
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Torres-Rios v. State, 205 So. 3d 883 (Fla. 5th DCA 2016)…earm and only one person was shot during a single criminal episode, and we instruct the postconviction court to enter an amended order providing for concurrent sentences instead. See Williams v. State, 186 So. 3d 989, 993 (Fla. 2016); Cook v. State, 775 So. 2d 425, 426 (Fla. 5th DCA 2001). [*884] AFFIRMED in part; REVERSED in part; and REMANDED with instructions. ORFINGER, LAMBERT, and EDWARDS, JJ., concur.…
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State v. Parker, 812 So. 2d 495 (Fla. 4th DCA 2002)…ople, stacking was permissible. Id. at 891. Since the Christian opinion, section 775.087(2) has been amended to include subsection (2)(d). See § 775.087(2)(d), Fla. Stat. (1999). However, the fifth district’s reliance on Christian in Cook v. State, 775 So. 2d 425 (Fla. 5th DCA 2001), indicates that the amendment has not altered the general rule set forth in Christian. In Cook, Cook was convicted of participating in a robbery of a restaurant during which one woman was shot and robbed, a second woman was robb…
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Perreault v. State, 853 So. 2d 604 (Fla. 5th DCA 2003)…mandatory sentence, running consecutive to the other sentences. Appellant argues that his firearm offenses were committed during a single criminal episode, and he did not point or shoot the firearm at any of the victims. See generally Cook v. State, 775 So. 2d 425 (Fla. 5th DCA 2001). He argues that the sentences are illegal because the court cannot impose consecutive minimum mandatory terms for the firearm offenses committed during a single criminal episode. [*606] If minimum mandatory terms for firearm offe…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Maddox v. State, 760 So. 2d 89 (Fla. 2000)
- Dean v. Publix Supermarkets, Inc., 438 So. 2d 1 (Fla. 1983)
- State v. Thomas, 487 So. 2d 1043 (Fla. 1986)
- State v. Christian, 692 So. 2d 889 (Fla. 1997)
- McGOUIRK v. State, 493 So. 2d 1016 (Fla. 1986)
- THE Florida BAR v. Napier, 467 So. 2d 994 (Fla. 1985)
- State v. Suarez, 485 So. 2d 1283 (Fla. 1986)
- State v. Ames, 467 So. 2d 994 (Fla. 1985)
- State v. Jones, 485 So. 2d 1283 (Fla. 1986)
- State v. Frye, 699 So. 2d 1010 (Fla. 1997)