Tyzick J. Wall v. State

251 So. 3d 1014

• Court: District Court of Appeal of Florida
• Decided: July 16, 2018
• Docket: 5D16-3731
• Status: Published

Opinion

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED

TYZICK JOSEPH WALL,

Appellant,

v. Case No. 5D16-3731

STATE OF FLORIDA,

Appellee.

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Opinion filed July 20, 2018

Appeal from the Circuit Court for Citrus County, Richard A. Howard, Judge.

Edward Juan Lynum, of Lynum & Associates, PLLC, Wildwood, for Appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appellee.

PER CURIAM.

Tyzick Joseph Wall appeals his convictions and sentences for second-degree

murder with a deadly weapon, robbery with a deadly weapon, and two counts of dealing

in stolen property.1 Wall was under the age of eighteen when he committed these crimes.

1Wall was indicted jointly with his codefendant, Bryan Thomas Robinson, for the premediated first-degree murder of Stephen Gorney (Count One), robbery with a deadly We affirm his convictions without further discussion but remand for resentencing on Count

One, second-degree murder. We also remand for the trial court to amend the sentence

on Count Two, robbery with a deadly weapon.

As to Wall's sentence on Count One, we reverse because Wall was entitled to a

jury fact-finding on whether he "actually killed, intended to kill, or attempted to kill"

Stephen Gorney.2 See Williams v. State, 242 So. 3d 280, 288-89 (Fla. 2018) (citing

Alleyne v. United States, 570 U.S. 99, 115 (2013)). We find that this error was not

harmless beyond a reasonable doubt. See id. at 289-90. Because second-degree

murder with a deadly weapon is a first-degree felony reclassified as a life felony under

sections 775.087(1)(a) and 782.04(2), Florida Statutes (2015), Wall should have been

sentenced under section 775.082(3)(b)2., Florida Statutes (2015). Williams specifies

resentencing as though there had been a jury finding that Wall did not kill, intend to kill,

or attempt to kill Gorney, rather than empanelment of a jury, as the remedy for this error.

242 So. 3d at 292-93. We, therefore, remand for resentencing on Count One pursuant

to section 775.082(3)(b)2.b. See Williams, 242 So. 3d at 288-93. The trial court shall

indicate in the sentencing document that Wall is eligible for sentence review on this count

after fifteen years under section 921.1402(2)(c), Florida Statutes (2015). §

775.082(3)(b)2.b., c., Fla. Stat. (2015).

weapon (Count Two), and two counts of dealing in stolen property (Counts Three and Four). 2 We note that Wall's second-degree murder conviction did not clearly include a finding by the jury that Wall actually killed Gorney due to the wording in the verdict form and jury instructions.

2 We also remand for the trial court to amend the sentence on Count Two, robbery

with a deadly weapon, to reflect eligibility for sentence review after twenty years under

section 921.1402(2)(d), Florida Statutes (2015). § 775.083(3)(c), Fla. Stat. (2015). In all

other respects, we affirm.

AFFIRMED, in part; REVERSED, in part; and REMANDED with instructions.

ORFINGER, BERGER and EISNAUGLE, JJ., concur.