BYRON G. JENNINGS v. STATE OF FLORIDA

247 So. 3d 84

• Court: District Court of Appeal of Florida
• Decided: May 16, 2018
• Docket: 15-4451
• Status: Published

Opinion

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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