DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

WYLIE BILLUPS,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D17-3623

[Jun 27, 2018]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm 

Beach County; John S. Kastrenakes, Judge; L.T. Case No. 50-2008-CF011478-AXXX-MB.

Antony P. Ryan, Regional Counsel, and Paul O’Neil, Assistant Regional 

Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm 

Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. 

Melear, Senior Assistant Attorney General, West Palm Beach, for appellee.

GROSS, J.

This case is the story of what can happen when words in a case become 

detached from a legal principle, to float freely in the ether of Westlaw or 

Lexis like free radicals ready to trigger mutations in the law. Here we 

return such free floating words to their original meaning and affirm the 

sentences under review.

After a trial, appellant was convicted of four felonies: (1) Robbery with 

a firearm; (2) robbery with a firearm; (3) aggravated assault with a firearm; 

and (4) felon in possession of a firearm.

His original sentences were:

Count I: robbery with a firearm, 30 years in prison, 10 year 

mandatory minimum;
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Count II: robbery with a firearm, 30 years in prison, 10 year 

mandatory minimum;

Count III: aggravated assault with a firearm, 5 years in prison, 3 

year mandatory minimum, and

Count IV: felon in possession of a firearm, 15 years in prison, 3 year 

mandatory minimum.

Counts I, II, and IV were imposed consecutively, including the mandatory 

minimum provisions. Count III was imposed concurrently to Count I.

These sentences were the subject of our decision in Billups v. State, 219 

So. 3d 900 (Fla. 4th DCA 2017). Based on the Supreme Court’s decision 

in Williams v. State, 186 So. 3d 989 (Fla. 2016)1, we held that the 

imposition of consecutive mandatory minimum sentences under section 

775.087(2)(d), Florida Statutes (2008), was improper, because appellant’s 

convictions arose from the same criminal episode and did not involve the 

discharge of a firearm. Billups, 219 So. 3d at 900; see also Walton v. State, 

208 So. 3d 60, 64 (Fla. 2016). We reversed the sentences and remanded 

the case to the circuit court for resentencing.

At the resentencing hearing, appellant argued that the four sentences, 

in their entirety, had to be run concurrently, not just the mandatory 

minimum portions of the sentences. 

The circuit judge commented that, from his review of the original 

sentencing hearing, it was “clear” that the sentencing judge (since retired) 

intended that appellant serve 75 years in prison. In response to 

appellant’s argument that all sentences had to run concurrently, the judge 

observed that Florida’s policy is not that crimes are “cheaper by the dozen” 

and that “when you have separate victims the court should be able to 

impose consecutive sentences.” 

1 Williams stated this general rule applicable to this case:

Generally, consecutive sentencing of mandatory minimum 

imprisonment terms [under the 10-20-Life statute] for multiple 

firearm offenses is impermissible if the offenses arose from the same 

criminal episode and a firearm was merely possessed but not 

discharged.

186 So. 3d at 993. We applied this general rule in ordering resentencing in this 

case. Billups, 219 So. 3d at 900.
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The judge resentenced appellant as follows, nunc pro tunc to September 

17, 2010:

Count I: 30 years in prison, with a 10 year mandatory minimum;

Count II: 30 years in prison, with a 10 year mandatory minimum, 

consecutive to Count I;

Count III: 5 years in prison, with a 3 year mandatory minimum, 

concurrent to Count I;

Count IV: 15 years in prison, with a 3 year mandatory minimum, 

consecutive to Count II.

Pursuant to this court’s mandate, the court ran all the mandatory 

minimum portions of the sentences concurrently. 

This sentencing scheme creates two theoretical sentencing gaps in 

Counts II and IV. For Count II, the 20 year portion of the sentence in 

excess of the mandatory minimum does not begin to run until the sentence 

in Count I has been completed. For Count IV, the 12 year portion of the 

sentence in excess of the mandatory minimum does not begin to run until 

the 20 year portion of the Count II sentence has been completed. The 

chart below provides a pictorial representation of the sentences:

Count 1 10 min man 20 years

Count 2 10 min man - Break in sentence - 20 years

Count 3

Served

3 min 

man 5 years 

Count 4 3 min 

man - Break in sentence - 12 years

Needless to say, appellant would continuously serve his prison 

sentence until the end of the sentence in Count IV, so the gaps are 

theoretical only. Appellant would experience the sentence as one long 

continuous period of incarceration.

Appellant’s challenge here is to these theoretical sentencing gaps, 

arguing that the Florida Supreme Court has held, “a prisoner is entitled to 

pay his debt to society in one stretch, not in bits and pieces.” Segal v. 

Wainwright, 304 So. 2d 446, 448 (Fla. 1974).

In construing a sentencing statute, a court must “give effect to 

legislative intent.” Mendenhall v. State, 48 So. 3d 740, 747 (Fla. 2010).
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The legislature has been crystal clear in stating the intent behind 

section 775.087—“that offenders who actually possess, carry, display, use, 

threaten to use, or attempt to use firearms or destructive devices be 

punished to the fullest extent of the law.” § 775.087(2)(d), Fla. Stat. 

(2017) (emphasis supplied). The Supreme Court has expounded on this 

legislative policy:

[T]he Legislature has very clearly mandated that it is the policy 

of this State to deter the criminal use of firearms. This 

mandate is underscored by the widespread promulgation of 

the 10–20–LIFE law beyond mere statutory notice, through 

television commercials, posters, and other forms of 

advertising. This policy is further underscored by the 

statement of legislative intent in section 775.087, which was 

added in 1999, see ch. 99–12, § 1, at 538–42, Laws of Fla., 

and the accompanying increase to the mandatory minimum 

sentence under section 775.087 from three years for all crimes 

to ten years for all crimes except aggravated assault, 

possession of a firearm, or burglary. Id.

McDonald v. State, 957 So. 2d 605, 611 (Fla. 2007). As the Court noted in 

McDonald, in promulgating the 10-20-Life statute, the Legislature set forth 

the reasons that violations of the statute be punished to the “fullest extent 

of the law:”

WHEREAS, Florida ranks among the most violent states in the 

nation, and

WHEREAS, in 1975 the Florida Legislature enacted legislation 

requiring a minimum mandatory sentence of three years in 

prison for possessing a gun during the commission or 

attempted commission of a violent felony, and

WHEREAS, the Legislature enacted this mandatory penalty in 

order to protect citizens from criminals who are known to use 

guns during the commission of violent crimes, and

WHEREAS, the FBI reports that among persons identified in 

the felonious killings of law enforcement officers in 1997, 71% 

had prior criminal convictions, and one of every four were on 

probation or parole for other crimes when they killed the 

officers, and
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WHEREAS, criminals who use guns during the commission of 

violent crimes pose an increased danger to the lives, health, 

and safety of Florida’s citizens and to Florida’s law 

enforcement officers who daily put their lives on the line to 

protect citizens from violent criminals, and

WHEREAS, the Legislature intends to hold criminals more 

accountable for their crimes, and intends for criminals who use 

guns to commit violent crimes to receive greater criminal 

penalties than they do today, and

WHEREAS, the Legislature intends that when law 

enforcement officers put themselves in harm’s way to 

apprehend and arrest these gun-wielding criminals who 

terrorize the streets and neighborhoods of Florida, that these 

criminals be sentenced to longer mandatory prison terms than 

provided in current law, so that these offenders cannot again 

endanger law enforcement officers and the public, and

WHEREAS, there is a critical need for effective criminal justice 

measures that will ensure that violent criminals are sentenced 

to prison terms that will effectively incapacitate the offender, 

prevent future crimes, and reduce violent crime rates, and

WHEREAS, it is the intent of the Legislature that criminals 

who use guns to commit violent crimes be vigorously 

prosecuted and that the state demand that minimum 

mandatory terms of imprisonment be imposed pursuant to 

this act . . . 

Id. at 611-12, quoting Ch. 99-12, Laws of Fla., at 537-38 (Emphasis 

added).

Against this mass of legislative intent emphasizing punishment, 

appellant relies on language plucked from Segal v. Wainwright, that “a 

prisoner is entitled to pay his debt to society in one stretch, not in bits and 

pieces.” 304 So. 2d at 448. That is a far narrower principle than appellant 

contends. The legal principle derives from situations where a defendant 

has been released from incarceration, whether on parole or otherwise. 

This is not the situation presented here, where appellant will continuously 

serve the sentence imposed by the circuit judge.

Segal involved a situation where a defendant was convicted of 

attempted robbery, sentenced to “not more than 5 years” and paroled. He 
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then committed two crimes, for which he was convicted and sentenced to 

one year and for which his parole was revoked. He completed his sentence 

for the two crimes (apparently in a county jail) and was returned to the 

state custody “for completion of his initial robbery sentence.” Id. at 447. 

He was paroled, arrested for robbery, convicted, sentenced to 9 years, and 

for which his parole was revoked. Id. 

The Division of Corrections took the position that the defendant would 

not complete service of his initial 5 year sentence until after he served the 

subsequently imposed 9 year sentence. The Supreme Court rejected that 

approach in a situation where the defendant had been paroled on the 

initial 5 year sentence, was sentenced subsequently for later committed 

crimes, and was entitled to some credit on the 5 year sentence for time 

served on the one year sentence. Id. at 448.

As authority for the statement that a defendant “is entitled to pay his 

debt to society in one stretch, not in bits and pieces,” Segal relied on State 

v. Coleman, 5 So. 2d 60 (Fla. 1941), a case which also involves a situation 

where a defendant was released from custody. The Coleman defendant 

was “committed to the county jail” to serve a six month sentence. Id. at 

29. Five days later, without her consent, she was released from custody. 

Id. After she was free for “more than six months,” the Dade County Sheriff 

took her into custody to serve the remainder of the six month sentence. 

Id. As the Supreme Court framed it, the question it had to “decide is 

whether the State can stay the running of a jail sentence prior to 

expiration, once it begins, without the convict’s consent.” Id. at 30. 

The Supreme Court held that the Coleman defendant was entitled to 

release by way of habeas corpus, that the State could not split up the jail 

sentence without the defendant’s consent, and commented that a “convict 

has a right to pay his debt to society by one continuous period of 

imprisonment.” Id. 

Both Segal and Coleman rest on the notion that a sentence of 

incarceration cannot be split by periods of freedom. That is not the 

situation in this case, where appellant will serve the mandatory minimums 

concurrently pursuant to Williams, but will serve the remainder of the 

sentences consecutively in one continuous period of incarceration. Unlike 

the situation in Segal, the crimes for which appellant was sentenced were 

part of the same criminal episode and he was sentenced for all crimes at 

the same time. Appellant’s sentencing contention would require an absurd 

result—that a crime with multiple victims had to be punished the same as 

a crime with a single victim. Such a result is contrary to the expressed 

intent of the legislature in enacting the 10-20-Life statute.
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We distinguish Smith v. State, 43 Fla. L. Weekly D771a (Fla. 4th DCA 

April 11, 2018). That case involved the sentencing of a defendant as a 

prison release reoffender, not a sentencing under the 10-20-Life statute, 

where only mandatory minimum sentences were required to be 

concurrent.

We acknowledge that other district courts of appeal have applied 

Segal’s “bits and pieces” language beyond the fact situations present in 

Coleman and Segal to sentences involving continuous periods of 

incarceration. See Stroman v. State, 837 So. 2d 1070 (Fla. 2d DCA 2003); 

Preyer v. State, 575 So. 2d 748 (Fla. 5th DCA 1991); Rozmestor v. State, 

381 So. 2d 324 (Fla. 5th DCA 1980). None of these cases concerned 

sentences where a defendant was released from incarceration as in Segal 

and Coleman. None of these cases involve the 10-20-Life statute with its 

express legislative directive that offenders be punished “to the fullest 

extent of the law.” § 775.087(2)(d), Fla. Stat. (2017). In cases with multiple 

victims, to allow the requirement of concurrent mandatory minimum 

sentences to handcuff a judge’s sentencing options is to nullify the express 

legislative intent.

We agree with appellant’s contention that the sentence calculates to 62 

years, as set forth above.

Affirmed.

GERBER, C.J., concurs.

CONNER, J., dissents with opinion.

CONNER, J., dissenting.

Although the conclusion reached by the majority is very attractive, my 

understanding of the law constrains me to dissent. I contend this case is 

not a story of what can happen when words in a case become detached 

from a legal principle, but instead, this case raises the question of whether 

a statute has altered a common law rule of Florida. I also contend that 

the common law rule of Florida, relevant to this case, is that once a 

sentence begins, it is to be served continuously and without interruption. 

I do not agree with the majority that section 775.087, Florida Statutes, 

altered the common law. I disagree with the majority contention that the 

resentences for counts 2 and 4 impose “theoretical sentencing gaps”; 

instead, the sentence gaps are palpable ones, as concretely demonstrated 

in the majority’s graphic. Finally, I contend our supreme court’s opinion 

in Williams v. State, 186 So. 3d 989 (Fla. 2016), as well as other supreme 

court case law and a substantial body of case law from this District and 
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others, compels us to reverse the resentences imposed by the trial court 

for counts 2 and 4 after our last remand, and again remand the case for 

resentencing on those counts.

The premise of the majority’s opinion is that the language that a 

“convict has a right to pay his debt to society by one continuous period of 

imprisonment,” State ex rel. Libtz v. Coleman, 5 So. 2d 60, 61 (Fla. 1941), 

and “a prisoner is entitled to pay his debt to society in one stretch, not in 

bits and pieces,” Segal v. Wainwright, 304 So. 2d 446, 448 (Fla. 1974), 

announces “a far narrower principle than appellant contends.” More 

specifically, the majority contends that “[b]oth Segal and Coleman rest on 

the notion that a sentence of incarceration cannot be split by periods of 

freedom,” which is not the factual situation presented in this case.

Part of my problem with this premise is that it ignores what I consider 

to be additional key language in Coleman. The majority correctly points 

out that the supreme court framed the question presented in Coleman as 

“whether the State can stay the running of a jail sentence prior to 

expiration, once it begins, without the convict’s consent,” but the court 

also said, “It is alleged and not denied that the sentence was interrupted 

without petitioner’s consent.” Coleman, 5 So. 2d at 61 (emphases added). 

The majority seemingly ignores the use of the word “stay” with regards to 

sentencing. It is difficult for me to conclude the language in Coleman is 

limited to situations in which a prisoner was improperly given release from 

a sentence. To me, the terms “stay” and “interruption,” particularly in the 

context of what the State can do, connotes something more than the 

precise fact patterns discussed in Coleman and Segal.

It is also significant the manner in which our supreme court expressed 

itself regarding a criminal’s “right to pay his debt to society by one 

continuous period of imprisonment.” The court has said:

We recognize the general rule that a sentence to jail is 

executed only when the convict has actually suffered the

imprisonment unless relieved by some competent authority. 

15 Am.Jur. Criminal Law, Section 512.

A limitation to this general rule is sustained by logic and good 

authority. This limitation is to the effect that the convict has a 

right to pay his debt to society by one continuous period of 

imprisonment.
- 9 -

Coleman, 5 So. 2d at 61 (emphasis added). It appears to me the court was 

clearly stating a Florida common law rule: once an incarceration sentence 

begins, it is to be served continuously and without interruption.

Additionally, I am concerned that the majority has overlooked some 

important language in its partial quote from Segal. The full quote is:

The most striking feature of this case, as reflected above, is 

respondent’s apparent disregard of our oft-repeated holdings

that a prisoner is entitled to pay his debt to society in one 

stretch, not in bits and pieces.

Segal, 304 So. 2d at 448 (emphasis added). Again, it strikes me that the 

court is referring to a common law rule that once a prison sentence begins, 

it is to be continuous and uninterrupted.

As the majority correctly acknowledges, “other district courts of appeal 

have applied Segal’s ‘bits and pieces’ language beyond the fact situations 

present in Coleman and Segal to sentences involving continuous periods 

of incarceration.” What the majority fails to acknowledge, is that this 

District has also relied upon the “bits and pieces” language to resolve 

factual situations beyond those presented in Coleman and Segal, and even 

ones similar to the facts of the instant case. In Regisma v. State, 120 So. 

3d 144 (Fla. 4th DCA 2013), we recently upheld a sentence after stating, 

“Generally, Florida courts are without authority to impose ‘piecemeal’ 

sentences that are interrupted and, thus, divided without the defendant’s 

consent.” Id. at 146 (quoting Goodwin v. State, 752 So. 2d 689, 691 (Fla. 

1st DCA 2000)); see also Francisco-Augustin v. State, 695 So. 2d 1299, 

1300 (Fla. 4th DCA 1997) (reversing on concession of error a sentence for 

count 2 in which a portion of the sentence ran consecutively to count 1 

and the remainder ran concurrently with count 1, relying on Rozmestor v. 

State, 381 So. 2d 324 (Fla. 5th DCA 1980)); cf. Gordon v. State, 960 So. 2d 

31, 40 (Fla. 4th DCA 2007) (noting that serving time spent in jail on the 

weekends as a condition of probation was not a sentence that violates the 

rule that a defendant must serve his sentence in one stretch rather than 

in bits and pieces).

In addition to my concern that the majority is ignoring Florida common 

law, it appears the majority ignores what I understand to be a correct 

principle of law as pointed out by the Fifth District, 

Unless there is specific statutory authority to impose a 

sentence, it cannot stand. And the language susceptible of 

differing constructions shall be construed most favorably to 

the accused. . . . [Section 921.16, Florida Statutes (1979)] 
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provides for concurrent sentences or consecutive sentences, 

but not a combination. Divided or non-consecutive sentences 

have been uniformly disapproved in this state.

Rozmestor, 381 So. 2d at 326 (emphasis added) (internal citations 

omitted). I respectfully submit that the majority is taking the statutory 

words “that offenders who actually possess, carry, display, use, threaten 

to use, or attempt to use firearms or destructive devices be punished to 

the fullest extent of the law,” § 775.087(2)(d), Fla. Stat., and stretching 

those words to now authorize something that neither section 775.087 nor 

section 921.16 expressly provides for: incarceration sentences being 

divided and interrupted into portions so that they can be stacked 

consecutively and concurrently in various combinations. In other words, 

the majority is solving an alleged impropriety (detaching words from the 

moorings of a legal principle) with another impropriety (stretching words 

beyond their meaning to embrace a new legal rule). Other than the “fullest 

extent of the law” language quoted above, the majority can point to no 

other statutory language that allows sentences imposing a fixed period of 

incarceration to be divided into portions.

As early as 1855, our supreme court wrote:

It is an admitted canan [sic], applicable to the construction of 

statutes, that where a statute contravenes or alters a principle 

of the common law it must always be strictly construed.

Sealey v. Thomas, 6 Fla. 25, 33 (Fla. 1855). In 1912, the court said:

A statute will not be construed as taking away a common-law 

right existing at the date of its enactment, unless that result 

is imperatively required—that is to say, unless it be found that 

the pre-existing right is so repugnant to the statute that the 

survival of such right would in effect deprive the subsequent 

statute of its efficacy; in other words, render its provisions 

nugatory.

Cullen v. Seaboard Air Line R. Co., 58 So. 182, 183 (Fla. 1912) (quoting 

Texas & Pac. Ry. Co. v. Abilene Cotton Oil Co., 204 U.S. 426, 437 (1907)). 

Seventy years ago, the court said:

Statutes in derogation of the common law and penal statutes 

should be strictly construed, and if there is any doubt as to 

their meaning, the courts should resolve such doubt in favor 

of the citizen.
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State ex rel. Williams v. Coleman, 180 So. 357, 359 (Fla. 1938).

Simply put, I agree with the logic and analysis of the Fifth District in 

Rozmestor:

In Segal v. Wainwright, 304 So. 2d 446 (Fla. 1974), the Florida 

Supreme Court rejected the state’s argument that the 

defendant should serve a five year robbery sentence with a 

one year sentence and a nine year sentence sandwiched 

between parts of the five year sentence. The court noted its 

“oft-repeated holdings that a prisoner is entitled to pay his 

debt to society in one stretch, not in bits and pieces.” Id. at 

448. The sandwiching of parts of one sentence between 

another was rejected in that case. Whether consecutive or 

concurrent the prisoner must be allowed to serve his sentence 

seriatim and in one stretch rather than in bits and pieces.

Rozmestor, 381 So. 2d at 326.

The case law demonstrates that the concept of serving an incarceration 

sentence continuously and without interruption is not a “free radical,” but 

one grounded in a common law rule relied upon not only by our sister 

courts, but this Court as well. Although the majority focuses on the 

language from Segal regarding “bits and pieces,” both this Court, as well 

as the Second District have expressly condemned a part consecutive and 

part concurrent sentencing scheme. The Second District, using the strong 

language that “imposing a prison sentence that is part concurrent with 

and part consecutive to another prison sentence is a punishment that no 

judge under the entire body of sentencing statutes could possibly inflict 

under any set of factual circumstances.” Stroman v. State, 837 So. 2d 1070, 

1071 (Fla. 2d DCA 2003) (emphasis added).

Shortly before oral argument in this case, this Court used similar 

(although not as strong) language, in Smith v. State, 4D17-1787, 2018 WL 

1747825 (Fla. 4th DCA Apr. 11, 2018). In Smith, we said, “Imposing a 

sentence that is partly concurrent and partly consecutive to another 

sentence violates a defendant’s right to ‘pay his debt to society in one 

stretch, not in bits and pieces.’” Id. at *1 (emphasis added) (quoting Segal, 

304 So. 2d at 448). In Smith, we demonstrated the grounding of the 

concept, anchoring the “bits and pieces” language to the impropriety of a 

part concurrent and part consecutive sentence. The majority’s bid to 

distinguish Smith relies on a distinction without a difference, particularly 

where the majority relies on the intent of the 10-20-Life statute to reach 

its conclusion. Notably, in one of the cases it cites for that very purpose, 
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our supreme court discussed how this Court found the intent for the 

Prisoner Reoffender Releasee statute to be the same as that of the 10-20-

Life statute. See McDonald v. State, 957 So. 2d 605, 609 (Fla. 2007) (“The 

Fourth District further concluded that the legislative intent expressed in 

section 775.087(2)(d) [the 10-20-Life statute], that violators be ‘punished 

to the fullest extent of the law,’ is the same clear intent expressed in section 

775.082(9)(d)(1) [the Prisoner Reoffender Releasee statute] that was noted 

by this Court in Grant[ v. State, 770 So. 2d 655 (Fla. 2000)].” (emphasis 

added)). 

I completely agree with the majority and share the frustration of the

trial court that if my position is correct, the common law and current 

status of the applicable statutes significantly “handcuffs” the trial court 

from trying to achieve the total length of time the trial court justifiably 

imposed at the original sentencing: 75 years of incarceration. However, I 

disagree that the common law and current status of the applicable statutes 

nullify the express legislative intent to punish “to the fullest extent of the 

law.” In this case, because the sentence imposed for count 2 is illegal, on 

resentencing, the trial court has the option of imposing a more severe 

sentence for that count. See Harris v. State, 645 So. 2d 386, 388 (Fla. 

1994) (determining that a trial court can impose a habitual offender 

sentence on remand after the court has pronounced a non-habitual 

sentence in the original proceedings without violating the Double Jeopardy 

Clause because there was no expectation of finality when the defendant 

attacked the legality of the sentence); State v. Swider, 799 So. 2d 388, 391 

(Fla. 4th DCA 2001) (“A trial court may vacate an illegal sentence and 

impose a harsher sentence without violating the defendant’s double 

jeopardy rights.”). I do not see the pre-existing common law rule that a 

defendant is to serve an incarceration sentence continuously and without 

interruption as so repugnant to any statutory provision that the survival 

of such right would in effect deprive the subsequent statute of its efficacy 

or render its provisions nugatory.

With regard to the ability to stack mandatory minimum sentences, I 

contend that the problem must be fixed by the legislature, rather than a 

judicial declaration that words in a case have become “detached” and “float

. . . like free radicals ready to trigger mutations of the law.” Agreeing that 

a substantial body of prior case law is correct, I respectfully dissent.

* * *

Not final until disposition of timely filed motion for rehearing.