ROCCO SURACE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Defendant's post-conviction motion was partially granted: the trial court's retention of jurisdiction over the first third of his sentence was unconstitutional ex post facto application, but consecutive sentences for felony murder and the underlying sexual battery were proper under State v. Enmund.
A trial court's retention of jurisdiction over the first third of a sentence violates the ex post facto clause when applied to sentences imposed before the authorizing statute's effective date, but consecutive sentences for felony murder and its underlying felony are constitutionally permissible.
[1] A trial court's retention of jurisdiction over the first third of a sentence pursuant to section 947.16, Florida Statutes, constitutes an unconstitutional ex post facto a…
[2] Consecutive sentences for felony murder and the underlying felony are constitutionally permissible following State v. …
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Join FLexlaw to unlock all legal intelligenceRocco Surace received consecutive sentences of 99 years for second degree murder, 99 years for sexual battery, and 5 years for false imprisonment. The…
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PER CURIAM.
Defendant Rocco Surace appeals the trial court’s summary dismissal of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Surace received consecutive terms of imprisonment: 99 years for second degree murder, 99 years for sexual battery, and 5 years for false imprisonment. In his motion, Surace alleged that the trial court erred in retaining jurisdiction over the first third of his sentence and in imposing sentences for both second degree felony murder and the underlying felony of sexual battery. The state concedes that because Surace was sentenced prior to the effective date of section 947.16, Florida Statutes (Supp. 1978), which authorizes the trial court to retain jurisdiction over the first third of a sentence, the court’s retention of jurisdiction constituted an unconstitutional ex post facto application of the statute. State v. Williams, 397 So. 2d 663 (Fla.1981).
We therefore remand for the entry of an appropriate order.
We turn next to Surace’s assertion that he was erroneously sentenced for both felony murder and the underlying felony. In a recent opinion, State v. Enmund, 476 So. 2d 165 (Fla.1985), the supreme court overruled State v. Hegstrom, 401 So. 2d 1343 (Fla.1981), and authorized convictions and sentences for both felony murder and the underlying felony. We therefore hold that the trial court’s imposition of separate sentences for sexual battery and for second degree murder was correct.
Affirmed in part; remanded for entry of a corrected order in accordance with this opinion.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- State v. Hegstrom, 401 So. 2d 1343 (Fla. 1981)
- State v. Rivers, 401 So. 2d 1343 (Fla. 1981)
- State v. Carney, 476 So. 2d 165 (Fla. 1985)
- State v. Enmund, 476 So. 2d 165 (Fla. 1985)
- State v. Williams, 397 So. 2d 663 (Fla. 1981)