MICHAEL W. KINNEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred in habitualizing the defendant on a robbery conviction for which the sentence was not vacated on prior appeal and in imposing consecutive sentences on remand without proper justification.
[1] A trial court lacks jurisdiction to sentence a defendant as an habitual felony offender on a conviction whose sentence was not vacated on appeal and remanded for resenten…
[2] A trial court cannot impose consecutive sentences on remand after prior concurrent sentences were vacated without articulating valid reasons for the change.
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Join FLexlaw to unlock all legal intelligenceDefendant was convicted of attempted murder, robbery, and grand theft, with enhanced sentences. On a prior appeal, enhanced sentences for attempted mu…
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LEHAN, Judge.
Defendant was originally convicted and sentenced to 60 years for attempted first degree murder (an enhanced sentence), 50 years for robbery with a weapon, and 10 years for grand theft (an enhanced sentence). The robbery sentence was to run consecutive to the attempted murder sentence, while the grand theft sentence was to be served concurrently with the attempted murder sentence.
On defendant’s first appeal this court vacated the two enhanced sentences on the attempted murder and grand theft convictions because neither the judgment nor the sentence indicated that defendant was found to be an habitual felony offender (the purported basis for the enhanced sentences) and the procedural requisites of section 775.084, Florida Statutes (1981), were not followed. Accordingly, this court, 441 So. 2d 1163, remanded for resentencing.
On remand, the trial court resentenced defendant as it did earlier, except that the 10-year grand theft sentence was to run consecutive to the 50-year robbery sentence instead of concurrently with the attempted murder sentence. The trial court also sentenced defendant as an habitual felony offender on all three charges. Defendant contends in this second appeal that the trial court erred in habitualizing him on all three charges and in sentencing him to consecutive time on the grand theft conviction. We must agree with those contentions and therefore again remand for re-sentencing.
On the prior remand the trial court had only the attempted murder and grand theft convictions before him for sentencing because this court vacated only those two sentences. We did not vacate the robbery sentence. Thus, the trial court did not have jurisdiction to sentence defendant as an habitual felony offender on the robbery conviction. See State v. Sutton, 371 So. 2d 717 (Fla. 2d DCA 1979). Therefore, we vacate the portion of defendant’s robbery sentence which finds him to be an habitual felony offender. The habitualization on the attempted murder and grand theft charges was proper because the procedural requisites of section 775.084 were followed.
The trial court also erred in sentencing defendant consecutively on the grand theft charge. When a defendant is convicted of several offenses and given concurrent sentences which are then vacated on appeal and remanded for resentencing, the trial court is without authority on remand to make the sentences consecutive without articulation of valid reasons for the change. See Holloway v. State, 360 So. 2d 140 (Fla. 2d DCA 1978); Lyttle v. State, 352 So. 2d 942 (Fla. 2d DCA), cert. denied, 357 So. 2d 186 (Fla. 1977). We note that because the grand theft sentence should be served concurrently with the attempted murder sentence, defendant should have been credited on both sentences for time served. See Martin v. State, 452 So. 2d 938 (Fla. 2d DCA 1984); Bevins v. State, 412 So. 2d 456 (Fla. 2d DCA 1982). See also Jenkins v. Wainwright, 285 So. 2d 5 (Fla. 1973). Contra Green v. State, 450 So. 2d 1275 (Fla. 5th DCA 1984). In Green the Fifth District Court of Appeal took issue with Martin and distinguished Jenkins. However, we believe Martin is consistent with the following rationale of Jenkins:
We agree with the Petitioner’s contention. To conclude the sentencing judge only intended to grant Petitioner credit time on the first concurrent sentence and not on the other would necessarily result in Petitioner serving the longer sentence on Count II and in not having the benefit of the credit time granted him by the trial court. To adopt the interpretation of the Respondent would be tantamount to granting the Petitioner credit time and then taking it away, in short a meaningless act, resulting in no credit time whatsoever. We are not persuaded by such an absence of logic.
285 So. 2d 6.
Therefore, we vacate defendant’s sentence for grand theft and remand for a corrected sentence so that this sentence will be served concurrently with the attempted murder sentence and defendant will be credited with time served.
Finally, in response to defendant’s argument that the court improperly calculated retained-jurisdiction time, we find that the wording of the sentence states that the court retained jurisdiction over one-third of defendant’s sentence for attempted murder and robbery, i.e., over one-third of 110 years (60 plus 50). Thus, the retention was proper. In all other respects we affirm defendant’s convictions and sentences.
Accordingly, we affirm in part and vacate and remand in part.
BOARDMAN, A.C.J., and SCHOON-OVER, J., concur.
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Daniels v. State, 491 So. 2d 543 (Fla. 1986)…fth District Court of Appeal, see Green v. State, 450 So. 2d 1275 (Fla. 5th DCA 1984), but is consistent with the view taken by the First and Second District Courts of Appeal. See Vasquez v. State, 478 So. 2d 76 (Fla. 1st DCA 1985); Kinney v. State, 458 So. 2d 1191 (Fla. 2d DCA 1984). We approve the district court’s decision in this case, as well as the opinions of the First and Second District Courts on this issue. The facts of this case reflect that on July 10, 1983, Melvin Eugene Daniels, who was on probat…
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Daniels v. State, 477 So. 2d 1 (Fla. 4th DCA 1985)…cing error), the trial court did not give or apply the above-mentioned credit for time already served to the twenty-two year sentence in the instant case. We hold that it was error not to do so because the sentences were concurrent. Kinney v. State, 458 So. 2d 1191 (Fla. 2d DCA 1984); Martin v. State, 452 So. 2d 938 (Fla. 2d DCA 1984); and Blackwell v. State, 449 So. 2d 1296 (Fla. 2d DCA 1984). Contra Shepard v. State, 459 So. 2d 460 (Fla. 3d DCA 1984). We reverse and remand for resentencing in accordance he…
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Nicholson v. State, 492 So. 2d 1142 (Fla. 1st DCA 1986)…credit on a sentence that is to run concurrently with other sentences, those sentences must also reflect the credit for time [*1143] served.” (Emphasis in the original.) See also Vasquez v. State, 478 So. 2d 76 (Fla. 1st DCA 1985); Kinney v. State, 458 So. 2d 1191 (Fla. 2d DCA 1984). Accordingly, the trial court’s order is reversed and remanded with directions to apply full jail-time credit to both concurrent sentences. ERVIN, WENTWORTH and JOANOS, JJ., concur. . s.921.161(1), Fla.Stat. (1983), provides:…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Martin v. State, 452 So. 2d 938 (Fla. 2d DCA 1984)
- Buford A. Green v. State, 450 So. 2d 1275 (Fla. 5th DCA 1984)
- Bevins v. State, 412 So. 2d 456 (Fla. 2d DCA 1982)
- Jenkins v. Louie L. Wainwright, 285 So. 2d 5 (Fla. 1973)
- State v. Sutton, 371 So. 2d 717 (Fla. 2d DCA 1979)
- Lyttle v. State, 352 So. 2d 942 (Fla. 2d DCA 1977)
- Holloway v. State, 360 So. 2d 140 (Fla. 2d DCA 1978)
- Kinney v. State, 441 So. 2d 1163 (Fla. 2d DCA 1983)