JERRY LEWIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jerry Lewis appeals the summary denial of his motion for postconviction relief challenging consecutive minimum mandatory sentences imposed in 1976 for crimes arising from a single episode. The court reverses, holding that the Palmer rule prohibiting the stacking of minimum mandatory sentences applies retroactively and remands for the trial court to determine whether Lewis's offenses stemmed from a single criminal episode and whether the mandatory portion of his second sentence should be modified.
The court holds that Lewis is not precluded from raising the Palmer issue in a postconviction motion because Palmer applies retroactively. On remand, the trial court must first determine whether Lewis's offenses arose from a single criminal episode; if so, it may delete the mandatory portion of the second sentence but should afford the prosecution an opportunity to be heard, particularly if Lewis's plea resulted from a bargain that anticipated consecutive minimum mandatory sentences.
[1] Consecutive minimum mandatory sentences for offenses arising from a single criminal episode are improper.
[2] A ruling on the impropriety of stacking minimum mandatory sentences may be applied retroactively to cases predating the ruling.
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Join FLexlaw to unlock all legal intelligence“Under Palmer v. State, 438 So.2d 1 (Fla.1983), the "stacking" of minimum mandatory sentences is improper if the offenses arise from a single episode.”
Establishes the substantive legal rule that Lewis's postconviction motion is based upon
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Join FLexlaw to unlock all legal intelligenceIn 1976, Jerry Lewis pleaded guilty to armed robbery and aggravated battery charges that arose from a single criminal episode. He received consecutive…
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[*490] PRANK, Judge.
Jerry Lewis appeals from the summary denial of his motion for postconviction relief. We reverse and remand for further proceedings.
Lewis alleges that in 1976 he pleaded to charges of armed robbery and aggravated battery, and asserts the charges arose from a single criminal episode. He received consecutive sentences, including consecutive minimum mandatory sentences for the use of a firearm. Under Palmer v. State, 438 So. 2d 1 (Fla.1983), the “stacking” of minimum mandatory sentences is improper if the offenses arise from a single episode.
The trial court held that Lewis should have raised this issue on appeal. However, Lewis’ time to appeal expired long before the Palmer decision. In Cisnero v. State, 458 So. 2d 377 (Pla. 2d DCA 1984), we held that Palmer may be applied retroactively. Thus Lewis is not precluded from raising the issue in spite of the substantial lapse between sentencing and the filing of his postconviction motion. See Fla.R.Crim.P. 3.850.
Upon remand the trial court should first determine whether Lewis’ charges did indeed stem from a single episode. If they did not, the court may again deny the motion, attaching sufficient documentation to support that conclusion, and Lewis must file a notice of appeal within thirty days if he desires further appellate review.
If, on the other hand, the trial court agrees that a single episode was involved, it may delete the mandatory portion of the second sentence. However, we stop short of imposing such deletion as an express requirement. Although Lewis’ motion does not specify whether his plea was the result of an agreement with the state, we note that in Daniels v. Smith, 478 So. 2d 110 (Pla. 2d DCA 1985), the movant had entered into a plea bargain that took into consideration the likelihood of consecutive minimum mandatory sentences. Like Lewis’ sentence, the plea in Daniels occurred prior to the Palmer decision. Then, after Palmer, Daniels sought to have the minimum mandatory sentences set aside. Because of the plea bargain we declined to order the sentences corrected without affording the prosecution an opportunity to be heard. Similarly, in the present case the state may have a valid reason to object to the deletion of Lewis’ second mandatory sentence, and the trial court should entertain any such objection prior to passing upon Lewis’ motion.
Reversed for further proceedings consistent with this opinion.
LEHAN, A.C.J., and SANDERLIN, J., concur.
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Thomas v. State, 517 So. 2d 132 (Fla. 4th DCA 1987)…that portion of the sentence ordering restitution was an error and reverse. Pursuant to section 775.089(6), (7), Florida Statutes (1985) the trial court must consider the defendant’s financial resources. As this court concluded in Snell v. State, 502 So. 2d 489 (Fla. 4th DCA 1987), rev. dismissed, 509 So. 2d 1119 (Fla.1987), a defendant is entitled to a hearing prior to the imposition of restitution. See also Jenkins v. State, 444 So. 2d 947 (Fla.1984), and Grimes v. State, 499 So. 2d 42 (Fla. 1st DCA 1986…
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Cheatham v. State, 593 So. 2d 270 (Fla. 4th DCA 1992)…mine the defendant’s financial circumstances as was the case in Dominique v. State, 590 So. 2d 1059 (Fla. 4th DCA 1991); Oliverio v. State, 583 So. 2d 412 (Fla. 4th DCA 1991); Mounds v. State, 526 So. 2d 1084 (Fla. 4th DCA 1988); and Snell v. State, 502 So. 2d 489 (Fla. 4th DCA), rev. dismissed, 509 So. 2d 1119 (1987). In the instant case, the record reflects the trial court’s consideration of the [*272] defendant’s ability to pay restitution, albeit limited in scope. We are unwilling to impose the requireme…
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Young v. State, 601 So. 2d 636 (Fla. 4th DCA 1992)…e, and that the court reconsider the imposition of restitution and the amount thereof in accordance with this opinion. GUNTHER, J., concurs. WARNER, J., dissents with opinion. . Pellot v. State, 582 So. 2d 124 (Fla. 4th DCA 1991); Snell v. State, 502 So. 2d 489 (Fla. 4th DCA 1987); Thomas v. State, 517 So. 2d 132 (Fla. 4th DCA 1987).…
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
- Dean v. Publix Supermarkets, Inc., 438 So. 2d 1 (Fla. 1983)
- Tiodoso Cisnero, III v. State, 458 So. 2d 377 (Fla. 2d DCA 1984)
- Daniels v. Honorable Gilbert A. Smith, 478 So. 2d 110 (Fla. 2d DCA 1985)