Supreme Court of Florida

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No. SC17-1598

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ROBERT R. MILLER,

Petitioner,

vs.

STATE OF FLORIDA,

Respondent.

October 4, 2018

QUINCE, J.

Robert R. Miller seeks review of the decision of the First District Court of 

Appeal in Miller v. State, 224 So. 3d 851 (Fla. 1st DCA 2017). The district court 

certified that its decision is in direct conflict with the decision of the Fifth District 

Court of Appeal in Torres-Rios v. State, 205 So. 3d 883 (Fla. 5th DCA 2016). We 

have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

FACTS

Miller was convicted for the kidnapping with a firearm and aggravated 

battery of Steven Cooley as well as of possession of a firearm by a convicted felon. 

At sentencing, Miller was determined to be a habitual felony offender (“HFO”). 
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The State argued that the mandatory sentences had to run consecutively under the 

statute and caselaw. Defense counsel argued that because there was only one 

victim, the mandatory minimums were not required to run consecutively and 

requested that they run concurrently. The trial judge agreed with the State that he 

had no discretion and sentenced Miller to twenty years’ incarceration as an HFO 

on the kidnapping conviction, with a mandatory minimum of ten years, to ten 

years’ incarceration, with a mandatory minimum of ten years as an HFO on the 

aggravated battery conviction, and to five years’ incarceration, with a mandatory 

minimum of three years as an HFO on the possession conviction. The sentences, 

including the mandatory minimums, were all consecutive.

Miller appealed his consecutive sentences to the First District, which

affirmed. Miller v. State, 151 So. 3d 566 (Fla. 1st DCA 2014) (citing Walton v. 

State, 106 So. 3d 522 (Fla. 1st DCA 2013), quashed, 208 So. 3d 60 (Fla. 2016)). 

On appeal, this Court quashed the First District’s decision and remanded the case 

for reconsideration in light of this Court’s decisions in Walton and Williams v. 

State, 186 So. 3d 989 (Fla. 2016). Miller v. State, 42 Fla. L. Weekly S680, 2017 

WL 2302346 at *1 (Fla. May 26, 2017).

On remand from this Court for reconsideration pursuant to Walton, the First 

District determined that this Court “did not explicitly discuss a case factually 

similar to this one, in which appellant committed two gun-related offenses . . . but 
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appellant’s crimes involved only one victim who sustained only one physical 

injury.” Miller, 224 So. 3d at 852. The district court therefore reversed and 

remanded for the trial court to consider “whether, in its discretion, it wishes for 

appellant to serve his minimum mandatory sentences concurrently or 

consecutively.” Id. Miller now seeks this Court’s review.

DISCUSSION

Because our caselaw reflects that the crimes stemming from a single 

criminal episode involving a single victim or a single injury may not be sentenced 

consecutively, we quash the decision of the First District and remand with 

instructions to remand to the trial court to enter concurrent sentences.

This Court has long held that, where there is a single victim, “consecutive 

sentencing of mandatory minimum imprisonment terms for multiple firearm 

offenses is impermissible if the offenses arose from the same criminal episode.” 

Williams, 186 So. 3d at 993 (citing State v. Sousa, 903 So. 2d 923, 927 (Fla. 2005); 

Palmer v. State, 438 So. 2d 1, 4 (Fla. 1983); Perreault v. State, 853 So. 2d 604, 

606 (Fla. 5th DCA 2003)). Where, during a single criminal episode, there are 

multiple victims or multiple injuries to a single victim, consecutive sentences are 

permitted at the discretion of the trial judge. See Sousa, 903 So. 2d at 925-26; 

State v. Christian, 692 So. 2d 889, 890-91 (Fla. 1997); State v. Thomas, 487 So. 2d 

1043, 1044-45 (Fla. 1986). Where there are not multiple victims or multiple 
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injuries to a single victim and the defendant does not fire the gun, consecutive 

sentences are impermissible. Christian, 692 So. 2d at 890.

In 1997, we considered the application of section 775.087(2)(a), Florida 

Statutes (1993), where a defendant fired multiple gun shots at multiple victims

during a single criminal episode, concluding:

As a general rule, for offenses arising from a single episode, 

stacking is permissible where the violations of the mandatory 

minimum statutes cause injury to multiple victims, or multiple injuries 

to one victim. The injuries bifurcate the crimes for stacking purposes. 

The stacking of firearm mandatory minimum terms thus is permissible 

where the defendant shoots at multiple victims, and impermissible 

where the defendant does not fire the weapon.

Christian, 692 So. 2d at 890-91. In other words, we determined that consecutive 

sentences are permissible when a single criminal episode involves either multiple 

victims or multiple injuries to one victim. 

In Williams v. State, 186 So. 3d 989 (Fla. 2016), we considered the 

application of section 775.087(2)(d), Florida Statutes (2008), where a defendant 

fired shots into the air at four victims in a single episode. As with the defendant in 

Christian, consecutive sentences were permissible because there were multiple 

victims and the gun was fired. However, we clarified that the statute did not 

mandate, only permitted, consecutive sentences in that case because they occurred 

during a single criminal episode. Specifically, we held “that, under the plain 

language of section 775.087(2)(d), consecutive mandatory minimum sentences are 
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not required, but are permissible, if the sentences arise from a single criminal 

episode.” Id. at 994.1 

Together, these cases state that section 775.087(2)(d), Florida Statutes

(2014), mandates consecutive sentences for specified crimes committed in separate 

criminal episodes and permits consecutive sentences at judicial discretion for

specified crimes committed in a single criminal episode with either multiple 

victims or injuries. Section 775.087(2)(d) neither mandates nor permits

consecutive sentences for crimes committed in a single criminal episode with a 

single victim or injury in which a firearm is not discharged. 

Miller was charged with multiple offenses stemming from a single criminal 

episode involving a single victim in which the gun was not discharged. Under 

these facts, consecutive sentences are impermissible. Accordingly, we quash the 

decision in Miller and approve the decision in Torres-Rios and remand to the First 

District for proceedings consistent with this decision.

It is so ordered.

PARIENTE, LEWIS, and LABARGA, JJ., concur.

POLSTON, J., dissents with an opinion.

LAWSON, J., dissents with an opinion, in which CANADY, C.J., concurs.

 

1. The First District asserted that we have not addressed a case factually 

similar to this one. Miller, 224 So. 3d at 852. This reading of our decision in

Williams ignores the precedent on which Williams relied. This Court does not 

reverse itself sub silentio and the cases upon which Williams relied are still good 

law.
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND 

IF FILED, DETERMINED.

POLSTON, J., dissenting.

For the reasons I have explained in my dissent in Williams v. State, 186 So. 

3d 989, 996 (Fla. 2016) (Polston, J., dissenting), I have concluded that “[t]he plain 

language of section 775.087(2)(d) mandates consecutive sentencing.” Therefore, I 

would deny Miller relief, and I respectfully dissent.

LAWSON, J., dissenting.

This case presents an issue of statutory construction. For the reasons 

explained by Justice Canady in Walton v. State, 208 So. 3d 60, 68-70 (Fla. 2016) 

(Canady, J., dissenting), and Williams v. State, 186 So. 3d 989, 995-96 (Fla. 2016) 

(Canady, J., concurring in result), I conclude that section 775.087(2)(d), Florida 

Statutes, neither mandates nor prohibits consecutive sentences for crimes 

committed in a single criminal episode with a single victim or injury. Accordingly, 

I would affirm the result reached by the First District below.

CANADY, C.J., concurs.

Application for Review of the Decision of the District Court of Appeal – Certified 

Direct Conflict of Decisions 

First District - Case No. 1D13-5503

(Duval County)

Andy Thomas, Public Defender, and Pamela D. Presnell, Assistant Public 

Defender, Second Judicial Circuit, Tallahassee, Florida,
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for Petitioner

Pamela Jo Bondi, Attorney General, Trisha M. Pate and Kaitlin R. Weiss, Assistant 

Attorneys General, Tallahassee, Florida,

for Respondent