ROGER RICKS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Ricks appealed the denial of his Rule 3.850 motion claiming his sentence was not made concurrent with a pending probation violation charge as allegedly promised before he entered his guilty plea. The appellate court reversed and remanded because the trial court failed to supplement the denial order with relevant record portions, and Ricks stated a legally sufficient claim that his plea may have been based on a misunderstanding regarding the promised concurrent sentencing.
While the claim that a sentence should run concurrent with a non-existent pending sentence is legally insufficient under Florida law, Ricks stated a legally sufficient ground that his plea may have been based on a failure of communication or misunderstanding regarding the facts. The trial court erred in denying the motion without attaching portions of the record pertinent to the plea and the colloquy surrounding its acceptance.
[1] A trial court must attach portions of the files or records to its order denying a motion for postconviction relief when the motion is not legally insufficient on its face…
[2] A sentence cannot be imposed concurrently with a pending probation violation charge if no sentence has yet been imposed for that violation.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“It is not possible to serve a sentence concurrently with a sentence not in existence.”
Establishes the principle that concurrent sentencing requires an existing sentence to run concurrent with, making Ricks' initial claim legally insufficient.
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Join FLexlaw to unlock all legal intelligenceRicks entered a guilty plea in Wakulla County and received a ten-year sentence. He alleged his attorney had informed him before the plea that an agree…
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SHIVERS, Judge.
Ricks appeals the denial without hearing of his Fla.R.Crim.P. 3.850 motion. We reverse.
The issue raised in the 3.850 motion was that the defendant’s sentence, imposed in Wakulla County, was not imposed concurrent to a pending probation violation charge in Columbia County. Ricks alleged as his ground:
Before entering my plea, my attorney informed me that an agreement was made with the state’s attorney whereby if I pled guilty I would receive a ten (10) year sentence to run concurrent with charges (violation of probation, Columbia County) pending.
The ten (10) year sentence imposed did not stipulate this. It was my understanding that any conviction from my guilty plea would run concurrent with other charges pending.
In denying Ricks’ motion and motion for rehearing, the trial court did not attach any portion of the files or records which would conclusively show entitlement to no relief.
Rule 3.850 states that when a motion is legally insufficient it is unnecessary for the circuit court to attach documentation to the order. In the present case, Ricks’ contention was that he was entitled to a sentence concurrent to a pending violation in which he anticipated a sentence.
This ground is legally insufficient. Under § 921.16(2), Fla.Stat., (1981) the court may impose a sentence concurrent with another sentence for an offense contained in a separate charging instrument. However, the statutory language infers that there must be an existing sentence to impose a sentence concurrent thereto. See Richardson v. State, 432 So. 2d 750 (Fla. 2d DCA 1983). It is not possible to serve a sentence concurrently with a sentence not in existence. See Ex Parte Sams 67 So. 2d 657 (Fla.1953).
However, Ricks does state a legally sufficient ground in that it appears the plea may have been based upon a failure of communication or misunderstanding of the facts. Richardson v. State, supra, Brown v. State, 245 So. 2d 41 (Fla.1971).
Therefore, this case is remanded to the trial court for supplementation of the order with portions of the record and files that are pertinent to the plea and the colloguy surrounding its acceptance by the court.
REMANDED.
WENTWORTH and WIGGINTON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Ricks v. State, 490 So. 2d 237 (Fla. 1st DCA 1986)…tanding of the facts. We therefore remanded the case to the trial court with instructions to supplement its order with portions of the record pertinent to the plea and with the colloquy surrounding the court’s acceptance of the plea. Ricks v. State, 478 So. 2d 869 (Fla. 1st DCA 1985). After receiving such supplementation, we agree with the trial court that appellant’s motion was without merit, and affirm the order denying the motion. WENTWORTH and WIGGINTON, JJ., concur.…
Authorities Cited
- Brown v. State, 245 So. 2d 41 (Fla. 1971)
- Ellis Richardson v. State, 432 So. 2d 750 (Fla. 2d DCA 1983)
- Ex parte Sams, 67 So. 2d 657 (Fla. 1953)