MARCUS MELENDEZ TOLBERT v. STATE OF FLORIDA (2017)

District Court of Appeal of Florida, Fourth District.

MARCUS MELENDEZ TOLBERT, Appellant, v. STATE OF FLORIDA, Appellee.

No. 4D15-3926

Decided: February 01, 2017

Joshua LeRoy of LeRoy Law, PA, West Palm Beach, for appellant. Pamela Jo Bondi, Attorney General, Tallahassee, and Jessenia J. Concepcion, Assistant Attorney General, West Palm Beach, for appellee.

Marcus Tolbert appeals the judgment and sentences imposed after a jury found him guilty of three counts of robbery with a deadly weapon. He argues that the trial court committed fundamental error when it gave a standard jury instruction and relied on allegedly improper sentencing considerations. We find these arguments to be without merit and we affirm the convictions.

However, we reverse and remand for resentencing. The state acknowledges that the trial court erred in imposing consecutive mandatory minimum sentences pursuant to section 775.087(2)(d), Florida Statutes (2012), since there was no finding that the weapon was discharged, and the offenses arose out of the same criminal episode. See Williams v. State, 186 So. 3d 989, 993 (Fla. 2016). Based on this error, we reverse and remand for resentencing.

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

CIKLIN, C.J., TAYLOR and FORST, JJ., concur.

PER CURIAM.

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