TIODOSO CISNERO, III, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A defendant convicted of aggravated battery and two counts of aggravated assault appealed the denial of his postconviction relief motion challenging three consecutive mandatory minimum sentences imposed for crimes arising from the same incident. The court held that the Florida Supreme Court's decision in Palmer v. State, which prohibited stacking consecutive mandatory three-year sentences for crimes committed at the same time and place, should be applied retroactively as a fundamental sentencing error.
The court held that the Palmer principle should be applied retroactively to the appellant's sentences because improper imposition of mandatory minimum sentences constitutes fundamental error. The court reversed the denial of postconviction relief and remanded for the trial court to correct the three minimum mandatory sentences to run concurrently rather than consecutively.
[1] Consecutive mandatory minimum sentences for crimes committed at the same time and place are precluded by statute.
[2] Sentencing errors are more likely to be considered fundamental errors.
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Join FLexlaw to unlock all legal intelligence“the essential considerations in determining whether a new rule of law should be applied retroactively are essentially three: (a) the purpose to be served by the new rule; (b) the extent of reliance on the old rule; and (c) the effect on the administration of justice of a retroactive application of the new rule”
Establishes the three-part test for determining retroactive application of new legal rules
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Join FLexlaw to unlock all legal intelligenceOn February 16, 1981, Tiodoso Cisnero III was convicted of one count of aggravated battery and two counts of aggravated assault. All three convictions…
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GRIMES, Acting Chief Judge.
Appellant was convicted of one count of aggravated battery and two counts of aggravated assault. The underlying conduct for all three convictions occurred at the same time and place. On February 16, 1981, he was given three consecutive sentences, each of which included a mandatory three years imprisonment because of the use of a firearm in the commission of the crimes. In this appeal from the denial of his motion for postconviction relief, appellant now attacks the imposition of three consecutive minimum mandatory sentences for crimes arising out of the same incident.
In Palmer v. State, 438 So. 2d 1 (Fla.1983), the supreme court construed section 775.087(2), Florida Statutes (1981), to preclude the “stacking” of consecutive mandatory three-year minimum sentences for crimes committed at the same time and place. The case was one of first impression, and the court did not indicate whether its holding was limited to prospective application. Therefore, the issue before us is whether the principle of Palmer should be applied retroactively to appellant’s sentences.
The supreme court in Witt v. State, 387 So. 2d 922 (Fla.1980), stated:
Without attempting to survey this relatively unsatisfactory body of law, we note that the essential considerations in determining whether a new rule of law should be applied retroactively are essentially three: (a) the purpose to be served by the new rule; (b) the extent of reliance on the old rule; and (c) the effect on the administration of justice of a retroactive application of the new rule.
387 So. 2d at 926.
This court faced an issue of retroactivity in Hamm v. State, 380 So. 2d 1101 (Fla. 2d DCA 1980), in which the defendant had filed a motion for postconvietion relief from a long term prison sentence imposed as a condition of probation. Appellate decisions rendered after the expiration of his appeal time had held that such sentences were illegal. Though not couched in terms of retroactive application, we concluded that the error was of such fundamental dimension as to warrant relief under Florida Rule of Criminal Procedure 3.850. This ruling was consistent with the proposition that sentencing errors are more likely to be considered fundamental. See State v. Rhoden, 448 So. 2d 1013 (Fla.1984).
In Whitehead v. State, 446 So. 2d 194 (Fla. 4th DCA 1984), the court 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 relief on a motion filed pursuant to Florida Rule of Criminal Procedure 3.850 by setting aside the multiple consecutive three-year minimum mandatory sentences for convictions of separate offenses occurring in the same incident. Thus, we conclude that appellant is entitled to the benefit of Palmer. We reverse the order denying the motion for post-conviction relief and remand to the trial court with directions to correct the three minimum mandatory sentences so as to be served concurrently. The appellant need not be present for this purpose.
OTT and SCHEB, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Callaway v. State, 642 So. 2d 636 (Fla. 2d DCA 1994)…r analysis is completely compatible with this court’s decision to apply retroactively the rule in Palmer v. State, 438 So. 2d 1 (Fla. 1983), prohibiting consecutive minimum mandatory sentences arising from one criminal episode. See Cisnero v. State, 458 So. 2d 377 (Fla. 2d DCA 1984). However, the supreme court engaged in a different analysis of the same subject in Bass v. State, 530 So. 2d 282 (Fla.1988), leaving in doubt the correctness of the reasoning in Cisnero. In Bass, the supreme court issued an initi…
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Daniels v. Honorable Gilbert A. Smith, 478 So. 2d 110 (Fla. 2d DCA 1985)…n his motion to vacate or correct sentence, Daniels claimed that this “stacking” of minimum mandatories was improper under Palmer v. State, 438 So. 2d 1 (Fla.1983). We have previously held that Palmer may be applied retroactively. Cisnero v. State, 458 So. 2d 377 (Fla. 2d DCA 1984). See also Moore v. State, 464 So. 2d 1296 (Fla. 1st DCA 1985). The trial court, denying Daniels’ motion, attached a copy of the plea colloquy. From a review of this transcript, it appears that the offenses in question could have a…
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Vause v. State, 502 So. 2d 511 (Fla. 1st DCA 1987)…ng 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 motion, notwithstanding the fact that the error could…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Witt v. State, 387 So. 2d 922 (Fla. 1980)
- Dean v. Publix Supermarkets, Inc., 438 So. 2d 1 (Fla. 1983)
- State v. Learnhart Rhoden, 448 So. 2d 1013 (Fla. 1984)
- Whitehead v. State, 446 So. 2d 194 (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)
- Hamm v. State, 380 So. 2d 1101 (Fla. 2d DCA 1980)
- Pettis v. State, 448 So. 2d 565 (Fla. 4th DCA 1984)
- Davis v. State, 453 So. 2d 196 (Fla. 3d DCA 1984)