ROBERT H. COLE, JR.
v.
STATE OF FLORIDA

Fla. 5th DCA | 2024-08-16
No. 2023-2057
Edwards, C.J., Lambert, J., Jay, J., Foxman, J.
2024 FL 10042 Florida District Court of Appeal, Fifth District (2024)

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Holding

A trial court's life sentence for a violation of section 800.04(5)(b) cannot include a twenty-five-year mandatory minimum provision, and remand is appropriate for the ministerial correction of such an erroneous sentence.

Headnotes

[1] A life sentence imposed for a violation of section 800.04(5)(b), Florida Statutes, cannot include a twenty-five-year mandatory minimum provision, and remand for ministeri…

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Key Quotes

“remand is appropriate for the ministerial act of removing the erroneous inclusion of the twenty-five-year mandatory minimum provision in the life sentence without the defendant's attendance”

The court explained that where the record demonstrates the trial court intended to impose life imprisonment rather than a term-of-years sentence, remand for correction is appropriate without requiring the defendant's presence.
Facts & Procedural History

Robert H. Cole, Jr. was convicted of violating section 800.04(5)(b), Florida Statutes, and sentenced to life in prison with a twenty-five-year mandato…

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Per_curiam
Per Curiam

FIFTH DISTRICT COURT OF APPEAL

STATE OF FLORIDA

_____________________________ Case No. 5D2023-2057 LT Case No. 2022-300616-CFDB _____________________________ ROBERT H. COLE, JR., Appellant, v. STATE OF FLORIDA, Appellee. _____________________________ On appeal from the Circuit Court for Volusia County. Karen A. Foxman, Judge. Matthew J. Metz, Public Defender, and Andrew Mich, Assistant Public Defender, Daytona Beach, for Appellant. Robert H. Cole, Jr., Carrabelle, pro se. Ashley Moody, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee. August 16, 2024

PER CURIAM.

Robert H. Cole, Jr., appeals his conviction for violating section 800.04(5)(b), Florida Statutes (2021), and the trial court’s sentence of life in prison, with a twenty-five-year mandatory

Footnotes
2 minimum provision, imposed after trial. We affirm, without discussion, Cole’s conviction. However, we find it necessary to remand with directions to the trial court to enter a corrected sentence that does not include the twenty-five-year mandatory minimum provision. See Leon v. State, 190 So. 3d 243, 244 (Fla. 5th DCA 2016). Moreover, because our review of the record showed the trial court’s clear intent to impose the sentence of life in prison, Cole’s presence is not required when the trial court undertakes the ministerial task directed in this opinion. See Prentice v. State, 319 So. 3d 57, 60–62 (Fla. 4th DCA 2021) (determining that where the record leads to the firm conclusion that the trial court intended to impose a sentence of life in prison instead of a term-of-years sentence for the conviction under section 800.04(5)(b), remand is appropriate for the ministerial act of removing the erroneous inclusion of the twentyfive-year mandatory minimum provision in the life sentence without the defendant’s attendance). AFFIRMED; REMANDED for correction to the written sentence consistent with this opinion. EDWARDS, C.J., and LAMBERT and JAY, JJ., concur. _____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________

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