# Third District Court of Appeal State of Florida Opinion filed December 20 , 2023

. Not final until disposition of timely filed motion for rehearing.

________________ No. 3D23

- 1759 Lower Tribunal No. F06

- 30750

________________ 

### Walter Bailey , Appellant,

vs. 

### The State of Florida , Appellee.

An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami

- Dade County, Marisa Tinkler Mendez , Judge. Walter Bailey , in proper person. Ashley Moody , Attorney General, for appellee.

Before LOGUE, C.J., and EMAS and BOKOR , JJ. PER CURIAM.2 Affirmed. Se e § 775.087(2)(a)3. , Fla. Stat. (2006) (providing that a ny person convicted of an enumerated felony (including attempted murder) and “during the course of the commission of such felony such person discharged a firearm

. . . and, as the result of the dischar ge, death or great bodily harm was inflicted upon any person, the convicted person **shall** be sentenced to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison ”) ( e mphasis added); State v. Waldro n , 835 So. 2d 1217 (Fla. 5th DCA 2003) (reversing 15

- year sentence because jury expressly found defendant used and discharged a firearm during the commission of an aggravated battery, resulting in great bodily harm, and th erefore requiring the trial court to impose a 25

- year minimum mandatory under the 10/20/Life statute, section 775.087(2)); State v. R.F. , 648 So. 2d 293, 294 n.1 (Fla. 3d DCA 1995) (“ Where, as here, the trial court imposes a sentence which is shorter than a required mandatory minimum sente nce, the sentence is not within the limits prescribed by law and is properly viewed as

an ‘i llegal ’ sentence ”); State v. Lopez , 408 So. 2d 744 (Fla. 3d DCA 1982); State v. Scanes , 973 So. 2d 659 (Fla. 3d DCA 2008) (reversing three

- year minimum mandatory sentence as illegal and remanding for imposition of statutorily required ten

- year minimum mandatory sentence; holding that when a trial court imposes a sentence that is shorter tha n the required3 mandatory minimum sentence, the sentence is properly viewed as “illegal”) ( additional citations omitted); Allen v. State , 853 So. 2d 533, 534 (Fla. 5th DCA 2003) (affirming trial court's modification of sentence from a three

- year minimum man datory sentence to a ten

- year minimum mandatory sentence where sentencing statute required the imposition of a ten

- year minimum mandatory sentence, and therefore, three

- year minimum mandatory sentence was illegal). See also Kelsey v. State , 206 So. 3d 5, 1 1 (Fla. 2016) (“In 2012, we clarified that jeopardy attaches only to a legal sentence” ) (citing Dunbar v. State , 89 So. 3d 901, 905 (Fla. 2012) ); 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”) ; Spatcher v. State , 228 So. 3d 1162, 1164 (Fla. 1st DCA 2017) ( “We reject Spatcher's suggestion that the oral

- pronouncement

controls rule applies only when it benefits the defendant. That is tantamount to arguing that the lesser punishment always controls, a rule we have never recognized. The rule that oral pronouncements control operates whether it helps or hurts a defendant.” )