Termitus v. State
Termitus v. State
Opinion of the Court
Defendant, Luc Termitas [“Termitas”], appeals the trial court’s denial of his motion to correct an illegal sentence pursuant to Rule 3.800(a), Florida Rules of Criminal Procedure. Termitas argues that the life sentences he received for attempted armed robbery with a firearm on Counts II and III are illegal, mainly because they exceed the statutory maximum. We agree that the sentences are illegal, though only partly for the precise reason asserted by Ter-mitas.
After a jury trial, Termitas was convicted of one count of first-degree murder, two counts of attempted robbery with a firearm,
Here, in rendering its verdict on Count II, the jury made a special finding that Termitus possessed and discharged a firearm while attempting to rob Stacy Ross-man. Therefore, the trial court had a nondiscretionary duty to impose the statutorily-required twenty years for the discharge of the firearm. See Dunbar v. State, 46 So.3d 81, 83 (Fla. 5th DCA 2010); see also Allen v. State, 853 So.2d 533 (Fla. 5th DCA 2003); State v. Strazdins, 890 So.2d 334, 334 (Fla. 2d DCA 2004) (When a trial court imposes a sentence that is shorter than the required mandatory minimum sentence, “the sentence is not within the limits prescribed by law and is properly viewed as an ‘illegal’ sentence.”). In sum, the sentence on Count II is illegal in two respects: the trial court erred in sentencing Termitus to life in prison for a first-degree felony, but the trial court also erred in failing to impose the required mandatory minimum sentence. We vacate the sentence on Count II and remand for resentencing.
Termitus’ sentence on Count III is also illegal. Although the trial court and counsel similarly misperceived the degree of this offense to be a first-degree felony, punishable by life, and also sentenced Ter-mitus to an illegal three-year firearm minimum mandatory, the life sentence imposed on Count III was less “illegal” because, as to Count III, the jury had specifically determined that Termitus discharged a firearm resulting in the death of the victim. Under Section 775.087(2)(a)3., a defendant who discharges a firearm during the commission of certain enumerated crimes, including robbery and attempted robbery, and inflicts death or great bodily harm as the result of the discharge 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.” Thus, on resentencing, the trial court must impose a minimum mandatory sentence within that range. See Mendenhall v. State, 48 So.3d 740 (Fla. 2010).
. In Count II, Defendant was charged with attempted robbery with a firearm for his actions with regard to victim Stacy Rossman. In Count III, Defendant was charged with attempted robbery with a firearm for his actions which resulted in the death of victim Sue Ellen Gelsinger.
. Defendant’s convictions on Count II and Count III cannot be reclassified to first-degree felonies pursuant to Section 775.087(1) — the firearm reclassification statute — because the use of a firearm is an essential element of the offense of attempted robbery with a firearm. See Denizard v. State, 79 So.3d 159 (Fla. 2d DCA 2012); Williams v. State, 850 So.2d 656, 658 (Fla. 1st DCA 2003).
. The trial judge who presided on Termitus’ rule 3.800 motion correctly determined that the sentence on Count III did not exceed the statutory maximum, but was mistaken in applying that same reasoning to Count II because the jury did not find for Count II that Termitus possessed and used a firearm resulting in the death of the victim.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.