DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

RICARDO L. WHYMS,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D15-3473

[February 17, 2016]

Appeal of order denying rule 3.800 motion from the Circuit Court for 

the Seventeenth Judicial Circuit, Broward County; Edward H. Merrigan, 

Jr., Judge; L.T. Case No. 01-16528 CF10A.

Ricardo L. Whyms, Okeechobee, pro se.

No appearance required for appellee.

PER CURIAM.

Ricardo L. Whyms appeals an order denying his rule 3.800(a) motion to 

correct illegal sentence. We affirm but for reasons other than those given 

by the trial court. 

In 2003, Whyms entered a negotiated plea to robbery with a firearm. 

Pursuant to the terms of the agreement, Whyms was sentenced to a 

ten-year mandatory minimum under the 10-20-Life law1 consecutive to 

any active sentence. In the present motion, Whyms contends that the 

mandatory minimum is illegal because the judge did not orally pronounce 

it.

The trial court denied the motion attaching the State’s response, which 

argued that the motion repeated a claim that was denied in a prior motion 

and affirmed on appeal by this Court in Whyms v. State, 158 So. 3d 600 

(Fla. 4th DCA 2015) (4D14-3888) (table). The prior motion attached by the 

State, however, did not raise the present claim regarding the mandatory 

minimum sentence. The claim was not shown to be barred by the doctrine 

1 § 775.087(2), Fla. Stat. (2000).
2

of collateral estoppel. State v. McBride, 848 So. 2d 287, 291 (Fla. 2003). 

We nevertheless affirm because Whyms’ claim is frivolous. The 

transcript of the plea hearing and sentence are in the record and make 

absolutely clear that the court imposed the agreed-upon ten-year 

mandatory minimum sentence. Whyms contends that the mandatory 

minimum was not orally pronounced because the judge did not expressly 

say so at the precise moment the judge announced the sentence. The 

record, however, is crystal clear that the judge imposed the sentence as 

provided for in the plea agreement.

In addition to being factually refuted by the record, the claim lacks 

merit as a matter of law. Whyms cites to Ashley v. State, 850 So. 2d 1265, 

1267 (Fla. 2003), which stands for the proposition that “[o]nce a sentence 

has been imposed and the person begins to serve the sentence, that 

sentence may not be increased without running afoul of double jeopardy 

principles.” Ashley is inapplicable under the circumstances.

In Dunbar v. State, 89 So. 3d 901 (Fla. 2012), the trial court failed to 

orally pronounce a mandatory minimum required by law. Later that day, 

the court added the mandatory minimum to the written sentence. Id. at 

903. The Florida Supreme Court rejected the notion that double jeopardy 

precluded addition of the mandatory minimum because, in these 

circumstances, the defendant had no legitimate expectation of finality in 

the orally pronounced sentence. Id. at 906. The same rationale applies 

here.

Whyms filed this motion twelve years after his negotiated plea. Our 

records show that Whyms has filed other meritless postconviction motions 

and appeals. We caution Whyms that frivolous postconviction filing will 

not be tolerated and may result in sanctions and referral to prison officials. 

See State v. Spencer, 751 So. 2d 47 (Fla. 1999); see also § 944.279(1), Fla. 

Stat. (2015).

Affirmed. Appellant warned against frivolous filing.

WARNER, STEVENSON and KLINGENSMITH, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.