Adolphus Munden v. State of Florida

D ISTRICT C OURT OF A PPEAL O F T HE STATE OF F LORIDA
FOURTH DISTRICT
ADOLPHUS MUNDEN,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
No. 4D2023-0949
[November 19, 2025]
Appeal from the Circuit Court for the Seventeenth Judicial Circuit,
Broward County; Andrew L. Siegel, Judge; L.T. Case No. 18000182CF10A.
Daniel Eisinger, Public Defender, and Timothy Wang, Assistant Public
Defender, West Palm Beach, for appellant.
James Uthmeier, Attorney General, Tallahassee, and Rachael Kaiman,
Senior Assistant Attorney General, West Palm Beach, for appellee.
SHEPHERD, J.
Adolphus Munden appeals his convictions and sentences for attempted
first degree murder with a firearm (Count 1) and felon in possession of a
firearm (Count 2). 	Munden raises five issues on appeal. 	For the reasons
discussed below, we affirm in part and reverse in part. 	We affirm without
further discussion on issues I, II, III, and V.
On issue IV, Munden claims the trial court reversibly erred by denying
his motions to correct sentence. 	We agree.
Background
The trial court: (1) adjudicated Munden guilty and sentenced him to life
in prison; (2) imposed a mandatory minimum of life in prison as a prison
releasee 	reoffender 	(“PRR”) 	and 	as 	a 	habitual 	violent 	felony 	offender
(“HVFO”); and (3) imposed a mandatory minimum of twenty-five years in
prison under Florida’s 10-20-Life statute on Count 1, a felony punishable
by life. 	Also, regarding Count I, the trial court designated Munden as a
habitual felony offender (“HFO”), but did not specify a sentence related to

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that designation. 	The trial court further sentenced Munden to fifteen
years’ imprisonment as an HFO on Count 2, to run concurrently with his
sentence on Count 1. 	The trial court did not impose either the three-year
or 	ten-year 	mandatory 	minimum 	sentences 	required 	under 	section
775.087(2)(a)1, Florida Statutes (2016). 	Munden agreed that he qualified
as an HFO, an HVFO and a PRR based on his prior criminal history. 	He
cannot collaterally attack those designations now. See State v. Harbaugh,
754 So 2d. 691 (Fla. 2000). 	However, Munden may challenge the legality
of his sentences for those designations on direct appeal and in a Florida
Rule of Criminal Procedure 3.800(b) motion. 	See Willis v. State, 760 So.
2d 1018, 1020 (Fla. 4th DCA 2000).
Prison Releasee Reoffender Sentence
Munden’s rule 3.800(b)(2) motions to correct sentence argued that his
PRR designation and sentence are ex post facto violations. 	Our analysis
in Salvo v. State, 199 So. 3d 390 (Fla. 4th DCA 2016), squarely addresses
Munden’s argument:
Florida law prohibits imposing: (1) HFO and HVFO sanctions
for the same crime, see Clines v. State, 912 So.2d 550, 560
(Fla. 2005) (“[O]nly one recidivist category in section 775.084
may be applied to any given criminal sentence.”); and (2)
HVFO and PRR sentences of the same duration, see Grant v.
State, 770 So. 2d 655, 659 (Fla. 2000) (a defendant cannot be
sentenced as both an HFO and a PRR for the same crime
unless the HFO sentence would be longer than the PRR
sentence).”
Id. at 392.
The state concedes that Munden’s PRR sentence was improper, as were
the dual HFO and HVFO designations on Count 1. 	We agree with those
concessions.
Munden’s 2016 conviction upon which the state relied to request a PRR
designation on Count 1 was not a qualifying offense. 	On July 12, 2016,
Munden was released on a prison sentence from the Broward County jail.
The 2016 version of Florida’s PRR statute required release from a “state
correctional facility operated by the Department of Corrections ….” 	§
775.082(9)(a)1., Fla. Stat. (2016). In 2018, the Florida Supreme Court held
in State v. Lewars, 259 So. 3d 793 (Fla. 2018):

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[T]o satisfy the “released from” aspect of the PRR definition
based on release from “a state correctional facility operated by
the 	Department 	of 	Corrections 	or 	a 	private 	vendor,” 	a
defendant must have been incarcerated in and physically
released from a prison, and not a county facility operated by
the local government, within the statutory period.
Id. at 800.
In 	2019, 	post-Lewars, 	the 	legislature 	amended 	section 	775.082,
authorizing 	PRR 	status 	for 	any 	defendants 	released 	from 	“a 	county
detention facility following incarceration for an offense for which the
sentence pronounced was a prison sentence ….” 	§ 775.082(9)(a)1., Fla.
Stat. (2019). 	Therefore, Munden’s PRR designation and sentence are ex
post facto violations because he is subject to the 2016 version of Florida’s
PRR statute, rendering Munden’s PRR sentence illegal.
Habitual Felony Offender and Habitual Violent Felony Offender
Munden conceded that he qualified as an HFO and HVFO based on his
criminal history. 	On Count 1, the trial court designated Munden both as
an HFO and an HVFO. 	The trial court’s dual designations cannot stand.
Our supreme court concluded that “because section 775.084 generates
differing 	reasonable 	constructions, 	we 	endorse 	the 	construction 	that
favors the defendant and hold that only one recidivist category in section
775.084 may be applied to any given criminal sentence.” 	Clines v. State,
912 So. 2d 550, 560 (Fla. 2005).
Resentencing Hearing
Count 1
For the reasons stated above, and because the trial court believed it
had no choice other than to impose a mandatory life sentence with a
mandatory life minimum as a PRR, we reverse and remand for de novo
sentencing on Count 1.
On remand, the trial court shall not impose a PRR designation and
sentence. Section 775.084(4)(b), Florida Statutes (2016), permits the court
to “sentence the habitual violent felony offender as follows: 1. 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.” 	Therefore, if the trial court
designates Munden as an HVFO, the trial court must impose a minimum
term of fifteen years and up to life. § 775.084(4)(b), Fla. Stat. (2016). The

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court shall not impose a mandatory minimum sentence of life if the trial
court designates Munden as an HVFO.
At resentencing, the trial court shall not designate or sentence Munden
as both an HFO and an HVFO on Count 1. 	Clines, 912 So. 2d at 560.
The trial court shall reimpose the minimum mandatory sentence of
twenty-five years and up to life pursuant to Florida’s 10-20-Life statute,
section 775.087(2)(a)3., Florida Statutes (2016):
Any person who is convicted of a felony or an attempt to
commit a felony listed in sub-subparagraphs 1.a.-p. or sub-
subparagraph 1.r., regardless of whether the use of a weapon
is an element of the felony, and during the course of the
commission of the felony such person discharged a “firearm”
or “destructive device” as defined in s. 790.001 and, as the
result 	of 	the 	discharge, 	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. (emphasis added).
Count 2
On remand, on Count 2, we affirm the fifteen-year sentence as an HFO,
and remand for the trial court to impose either the three-year or ten-year
mandatory minimum sentence for the firearm enhancement pursuant to
section 775.087, Florida Statutes (2016).
First, the trial court understood the maximum penalty which Munden
faced on Count 2. Therefore, Munden faces no greater exposure on Count
2 than the trial court originally had imposed, plus the correction to impose
the mandatory minimum sentence. 	Felon in possession of a firearm is a
second-degree felony and, without enhancement, is punishable by fifteen
years in the Department of Corrections. See § 790.23(3), Fla. Stat. (2016).
As an HFO, Munden faced a maximum penalty of imprisonment for 30
years. 	See § 775.084(4)(a)2., Fla. Stat. (2016) (“In the case of a felony of
the second degree, for a term of years not exceeding 30.”).
Second, because the trial court sentenced Munden as an HFO to fifteen
years’ imprisonment and failed to impose the nondiscretionary mandatory
minimum sentence, the trial court shall resentence Munden to include
either 	the 	three-year 	or 	ten-year 	minimum 	sentence. 	Section
775.087(2)(a)1., Florida Statutes (2016), provides:

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[A] person who is convicted for possession of a firearm by a
felon 	. 	. 	. 	shall 	be 	sentenced 	to 	a 	minimum 	term 	of
imprisonment of 3 years if such person possessed a “firearm”
or “destructive device” during the commission of the offense.
However, if an offender who is convicted of the offense of
possession of a firearm by a felon has a previous conviction of
committing or attempting to commit a felony listed in s.
775.084(1)(b)1. 	and 	actually 	possessed 	a 	firearm 	or
destructive device during the commission of the prior felony,
the 	offender 	shall 	be 	sentenced 	to 	a 	minimum 	term 	of
imprisonment of 10 years.
Third, Munden shall be present for the resentencing on Count 2, for
the trial court to impose the required mandatory minimum sentence. “[A]
defendant is guaranteed the right to be present at any stage of [a] criminal
proceeding that is critical to its outcome if his presence would contribute
to the fairness of the procedure.” Dunbar v. State, 89 So. 3d 901, 907 (Fla.
2012) (quoting Kentucky v. Stincer, 482 U.S. 730, 745 (1987)). 	“And
because a sentencing proceeding in which a sentence is increased is a
critical stage of trial at which the defendant’s presence ‘would contribute
to the fairness of the procedure,’ the court concluded that Mr. Dunbar was
required to be present when the ten-year mandatory minimum was added
to his life sentence.” 	Thomas v. State, 286 So. 3d 884, 885 (Fla. 2d DCA
2019).
The state argues, and Munden agrees, that the trial court sentenced
Munden on Count 2 as both an HFO and HVFO. 	This is incorrect. 	The
trial court only pronounced and sentenced Munden as an HFO. 	The
sentence order also incorrectly designated Munden as both an HFO and
HVFO, which we correct below.
Criminal Punishment Code Guidelines Scoresheet
The state concedes that the scoresheet is incorrect. 	We accept that
concession. 	On remand, a corrected scoresheet shall be entered.
Scrivener’s Errors
The sentence order shall be corrected to mirror the trial court’s oral
pronouncement on Count 2, designating Munden only as an HFO. 	The
trial court shall strike the HVFO designation. “Where a trial court’s written
sentencing 	order 	conflicts 	with 	the 	oral 	pronouncement, 	the 	oral
pronouncement controls.” Raines v. State, 317 So. 3d 1162 (Fla. 4th DCA

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2021) (citing Santiago v. State, 133 So. 3d 1159, 1167 (Fla. 4th DCA
2014)); see also Thomas v. State, 183 So. 3d 479, 480 (Fla. 4th DCA 2016)
(finding 	that 	the 	trial 	court’s 	oral 	pronouncement 	controlled 	over 	a
conflicting written sentencing order).
The written order of judgment shall also be corrected to reflect Count 1
is a life felony. 	“A court’s written order of judgment and sentence must
not vary from its oral pronouncement of judgment and sentence.” 	Patrick
v. State, 413 So. 2d 474, 475 (Fla. 2d DCA 1982); see also Beasley v. State,
330 So. 3d 138, 139 (Fla. 1st DCA 2021) (“Beasley was convicted of
attempted first-degree murder under sections 782.04(1), 	777.04, and
775.087, Florida Statutes (2006). 	Section 782.04(1) classifies first-degree
murder as a capital felony. 	Section 777.04(4)(b) states that if the offense
attempted is a capital felony, then the offense of criminal attempt is a first-
degree felony. 	Thus, Beasley’s offense was a first-degree felony before
application of any firearm enhancements. 	Because he used a firearm
during the commission of the offense, section 775.087(1)(a) reclassified the
first-degree felony to a life felony. 	The trial court correctly classified the
offense as a life felony. 	For this life felony, Beasley faced a possible
punishment of ‘imprisonment for life or by imprisonment for a term of
years not exceeding life imprisonment.’”); § 775.082(3)(a)3., Fla. Stat.
(2016).
Affirmed in part, reversed in part, and remanded with instructions.
GROSS and G ERBER , JJ., concur.
* 	* 	*
Not final until disposition of timely-filed motion for rehearing.