MICHAEL PETTIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Michael Pettis appeals his sentence of two consecutive three-year mandatory minimum terms for aggravated battery and aggravated assault arising from a single incident. The Fourth District Court of Appeal holds that consecutive mandatory minimum sentences are improper when offenses arise from the same time and place, relying on the Florida Supreme Court's decision in Palmer v. State.
Appellant was not properly sentenced because consecutive mandatory minimum sentences are improper when offenses arise from the same time and place. The court may correct fundamental sentencing errors even if not raised at trial, as such errors directly affect the length of incarceration permitted by law.
[1] Consecutive mandatory minimum sentences are improper for offenses that occurred at the same time and place.
[2] Appellate courts may consider fundamental sentencing errors even if not raised at the trial level.
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Join FLexlaw to unlock all legal intelligence“We hold he was not because the episode involving both victims occurred at the same time and place.”
The court's holding that consecutive mandatory minimum sentences are improper when offenses arise from the same time and place.
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Join FLexlaw to unlock all legal intelligenceAppellant Pettis was convicted of aggravated battery upon one individual and aggravated assault upon another. Both offenses occurred during the same e…
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GLICKSTEIN, Judge.
There are two issues involved in this appeal. The first is whether appellant was properly sentenced to two consecutive three-year mandatory minimum terms after being convicted of aggravated battery upon one individual and aggravated assault upon another. We hold he was not because the episode involving both victims occurred at the same time and place. Palmer v. State, 438 So. 2d 1 (Fla.1983) was decided by the supreme court after the sentencing in this case; accordingly, the trial judge did not have the benefit of that decision — albeit it was a 4-3 result. Chief Justice Alderman, speaking for the dissenting justices, was of the opinipn that a robber victimizing thirteen victims in a funeral home by use of a firearm was appropriately sentenced to thirteen consecutive three-year mandatory minimum terms. He observed in his reading of sections 775.087(2) and 775.021(4), Florida Statutes (1981) that had Palmer committed thirteen robberies in thirteen separate homes, he could have received thirteen consecutive three-year mandatory minimum sentences, noting:
Certainly a defendant who commits multiple crimes should be punished more severely than one who commits only one crime. The legislature did not intend that crime be “cheaper by the dozen.”
Id. at 4. The majority, basing its decision on statutory construction, concluded that consecutive mandatory minimum sentences would be proper for offenses arising from separate times and places but not for holding up the mourners and staff of the funeral home.
The second issue has been raised by the state, which contends that appellant did not raise the impropriety of the consecutive mandatory minimum sentences at the trial level. We can think of no more fundamental error than the excess caging of a human being without statutory authority. Such an error in sentencing should be visited by an appellate court even if the trial court did not have the opportunity to do so. See Pugh v. State, 423 So. 2d 398, 399 (Fla. 1st DCA), dismissed 426 So. 2d 28 (Fla. 1982), which held:
Because the error in sentencing could cause Pugh to be incarcerated for a greater length of time than the law permits, it is fundamental, and we must consider it although Pugh could otherwise challenge it via a Rule 3.850 motion. Polk v. State, 418 So. 2d 388 (Fla. 1st DCA 1982); Gonzalez v. State, 392 So. 2d 334 (Fla. 3d DCA 1981).
Accordingly, we remand the matter to the trial court with direction to correct the sentence in accordance herewith. Appellant need not be present.
DOWNEY, J., concurs.
ANSTEAD, C.J., concurs in conclusion only.
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Napoleon Dowdell v. State, 500 So. 2d 594 (Fla. 1st DCA 1986)…ules. The impermissible stacking of mandatory minimum sentences renders a sentence illegal and this fundamental error is subject to collateral attack by a Rule 3.850 motion. Suffield v. State, 456 So. 2d 1196 (Fla. 4th DCA 1984) and Pettis v. State, 448 So. 2d 565 (Fla. 4th DCA 1984). We recognize that Aikens conflicts with Bass v. State, 478 So. 2d 461 (Fla. 1st DCA 1986), review granted, Case No. 68,230 (Fla.). We recede from Bass and in accordance with Aikens hold that under the facts of this case Dowdell…
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Tiodoso Cisnero, III v. State, 458 So. 2d 377 (Fla. 2d DCA 1984)…t held that because of its inherent potential of causing a defendant to be incarcerated for a greater length of time than provided by law, the improper imposition of a mandatory minimum sentence constituted fundamental error. Accord Pettis v. State, 448 So. 2d 565 (Fla. 4th DCA 1984); Reynolds v. State, 429 So. 2d 1331 (Fla. 5th DCA 1983); Lawson v. State, 400 So. 2d 1053 (Fla. 2d DCA 1981). Our sister court in Davis v. State, 453 So. 2d 196 (Fla. 3d DCA 1984), 9 F.L.W. 1644, recently accorded the defendant r…
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Vause v. State, 502 So. 2d 511 (Fla. 1st DCA 1987)…m sentence, because of its inherent potential of causing or requiring a defendant to be incarcerated or restrained for a greater length of time than provided by law in the absence of sentencing error, constitutes fundamental error); Pettis v. State, 448 So. 2d 565 (Fla. 4th DCA 1984); Cisnero v. State, 458 So. 2d 377 (Fla. 2d DCA 1984); Hough v. State, 448 So. 2d 628 (Fla. 5th DCA 1984). Based on the foregoing cases and the general rule that fundamental errors may be raised for the first time in a Rule 3.850…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dean v. Publix Supermarkets, Inc., 438 So. 2d 1 (Fla. 1983)
- Gonzalez v. State, 392 So. 2d 334 (Fla. 3d DCA 1981)
- Polk v. State, 418 So. 2d 388 (Fla. 1st DCA 1982)
- Pugh v. State, 423 So. 2d 398 (Fla. 1st DCA 1982)