DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

MARVIN BROADWAY,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D13-4260

[December 2, 2015]

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, 

Broward County; Ilona Holmes, Judge; L.T. Case No. 120016004CF10A.

Carey Haughwout, Public Defender, and Jonathan Dodson, Assistant 

Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, 

Assistant Attorney General, West Palm Beach, for appellee.

GERBER, J.

The defendant appeals from his conviction and life sentence for the 

reclassified first-degree felony of attempted robbery with a non-discharged 

firearm while wearing a mask which concealed his identity. The defendant 

raises six arguments. We affirm on all arguments except for two 

arguments relating to the defendant’s life sentence. On those two 

arguments, the defendant alleges the trial court erred in finding: (1) the 

habitual violent felony offender statute, section 775.084(1)(b), Florida 

Statutes (2012), mandated a life sentence; and (2) the 10-20-Life statute, 

section 775.087(2)(a), Florida Statutes (2012), also mandated a life 

sentence. We agree with those two arguments and reverse for 

resentencing.

In sentencing the defendant, the court stated:

Well, you know, this is always a sad day for this Court when 

I have to sentence someone that is young to an extended time 

in prison. But I do follow the law. I explained to [the 
2

defendant] that I would have to follow the law if there was a 

conviction in this case. 

. . . .

If I had the discretion I would sentence him to something a lot 

less than the statutes require because of his age. He is young.

But I don’t have that discretion. . . .

. . . .

As to that only count in the information, the Court hereby 

sentences you, as a habitual violent felony offender, to life in 

Florida State Prison. Under 10-20-Life, life in Florida State 

Prison, and as a prison releasee re-offender, 30 years, which 

is a minimum mandatory. 

Under the 10-20-Life sentence, that is mandatory life. However 

it is mandatory under habitual violent felony offender. He is 

effectively doing a life sentence. He is designated – it’s one 

sentence, but he is qualified under all. The Court has imposed 

those provisions of the statute. 

(emphasis added).

After orally pronouncing the sentence, the court entered a written 

disposition order. Page one of the order indicated that the court sentenced 

the defendant to life in prison, and page two of the order indicated that the 

court imposed the following “Special Conditions of Prison Sentence”:

 X Habitual Violent Offender mandatory minimum Life years

. . . .

 X Prison Releasee Reoffender mandatory minimum 30 years

 X Firearm mandatory minimum Life years

Five days after entering the written disposition order, the court sua 

sponte entered a corrected disposition order “as to page 2.” The corrected 

page two indicated that the court imposed the following “Special 

Conditions of Prison Sentence”:

 X Habitual Violent Offender mandatory minimum 0 years

. . . .

 X Prison Releasee Reoffender mandatory minimum 30 years

 X Firearm mandatory minimum 10 years
3

The defendant later filed a motion to correct sentencing error. In the 

motion, the defendant argued that the trial court misapprehended its 

discretion when sentencing him to a life sentence under the habitual 

violent felony offender statute and the 10-20-Life statute, while remarking 

it would sentence him to “something a lot less” if it had the discretion. 

According to the defendant, neither the habitual violent felony offender 

statute nor the 10-20-Life statute mandated a life sentence in this case. 

The trial court, without comment, denied the defendant’s motion to 

correct sentencing error. This appeal followed.

On the defendant’s first argument that the habitual violent felony 

offender statute did not mandate a life sentence, the state acknowledges

that “[w]hat the trial judge stated regarding the habitual violent [felony] 

offender statute appears to be incorrect when read literally.” The state 

then properly cites case law for the proposition that sentencing under the 

habitual violent felony offender statute “is permissive, not mandatory.”

Adams v. State, 617 So. 2d 474, 474 (Fla. 4th DCA 1993).

We agree with the state’s concession. See § 775.084(1)(b), Fla. Stat. 

(2012) (“‘Habitual violent felony offender’ means a defendant for whom the 

court may impose an extended term of imprisonment, as provided in 

paragraph (4)(b) . . . .”) (emphasis added); § 775.084(4)(b)1., Fla. Stat. 

(2012) (“The court . . . may sentence the habitual violent felony offender 

as follows: . . . In the case of a life felony or a felony of the first degree, for 

life, and such offender shall not be eligible for release for 15 years.”) 

(emphasis added).

On the defendant’s second argument that the 10-20-Life statute did not 

mandate a life sentence, the state acknowledges that “when read literally, 

what the trial judge stated . . . regarding the 10-20-[L]ife statute is not 

correct.”

We agree with the state’s concession here too. See § 775.087(2)(a)1.c., 

Fla. Stat. (2012) (“Any person who is convicted of a felony or an attempt to 

commit a felony, regardless of whether the use of a weapon is an element 

of the felony, and the conviction was for . . . [r]obbery . . . and during the 

commission of the offense, such person actually possessed a ‘firearm’ . . .

shall be sentenced to a minimum term of imprisonment of 10 years . . . .”) 

(emphasis added). 
4

We acknowledge that the trial court’s corrected disposition order “as to 

page 2” may have indicated the court’s post-sentencing recognition that 

neither the habitual violent felony offender statute nor the 10-20-Life 

statute mandated a life sentence in this case. We also acknowledge that 

the court, after having corrected the disposition order, nevertheless denied 

the defendant’s motion to correct sentencing error, thus perhaps 

indicating the court’s intent to maintain the defendant’s life sentence.

However, our acknowledgement of those events does not eliminate the 

fact that the trial court imposed the life sentence at a time when, at least 

according to the transcript, the court mistakenly indicated it had no 

discretion but to impose a life sentence, just immediately after stating: “If 

I had the discretion I would sentence him to something a lot less than the 

statutes require because of his age.”

Based on the foregoing, we remand for resentencing so that the trial 

court may exercise its sentencing discretion with the express

understanding that neither the habitual violent felony offender statute nor

the 10-20-Life statute mandates a life sentence in this case. See, e.g., 

Goldwire v. State, 73 So. 3d 844, 846 (Fla. 4th DCA 2011) (“[W]here the 

record suggests that the trial court mistakenly believed it had no discretion 

. . . to sentence appellant, the case should be remanded for the trial court 

[to] exercise its sentencing discretion and consider all sentencing 

alternatives.”) (alterations in original; citation and internal quotation 

marks omitted).

As the defendant acknowledges, however, the court is required to 

resentence the defendant as a habitual violent felony offender in some 

manner which exceeds the thirty-year mandatory minimum sentence as a 

prison release reoffender. See Johnson v. State, 927 So. 2d 251, 252 (Fla. 

2d DCA 2006) (“[I]f the incarceration portion of an HFO sentence does not 

exceed the PRR sentence, the sentences violate the PRR.”).

Affirmed in part, reversed in part, and remanded for resentencing.

CIKLIN, C.J., and GROSS, J., concur.

* * *

Not final until disposition of timely filed motion for rehearing.