STATE OF FLORIDA, APPELLANT,
v.
MARCUS JAMES WILLIAMS A/K/A EDWARD ORRIN MORGAN, APPELLEE

Fla. 2d DCA | 1993-09-24
No. 92-02889
RYDER, A.C.J., and ALTENBERND, J., concur.
624 So. 2d 407 Florida District Court of Appeal, Second District (1993)

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Synopsis

Florida appealed a trial court's downward departure sentence for burglary and grand theft. The court reversed, holding that the trial court improperly based its downward departure on failure to consolidate sentencing with prior cases when the defendant had not requested consolidated sentencing and the cases did not meet the statutory definition of "pending."


Holding

The trial court erred in imposing a downward departure based on failure to consolidate sentencing. Under Clark v. State, cases are not "pending" unless a guilty verdict or plea has been obtained, and the burden falls on the defendant to move for consolidated sentencing. Williams' failure to request consolidation at the April 16 sentencing constituted a waiver, making the consolidation failure not a clear and convincing reason for downward departure.


Headnotes

[1] A downward departure sentence is not justified by the trial court's error in failing to consolidate pending and non-pending cases for sentencing when the defendant failed…

[2] An offense is not considered 'pending' for sentencing purposes unless a verdict of guilt or a plea of guilty or nolo contendere has been obtained.

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Key Quotes

“[A]s a general rule, an offense should not be considered as 'pending' before the trial court for sentencing unless a verdict of guilt or a plea of guilty or nolo contendere has been obtained.”

Establishes the legal definition of 'pending' cases required for consolidated sentencing

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Facts & Procedural History

Williams was charged with burglary of a conveyance and grand theft in October 1991. He was sentenced on April 16, 1992, to 30 months on prior charges …

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Opinion of the Court
PATTERSON, Judge.

PATTERSON, Judge.

The state challenges Williams’ downward departure sentence for burglary of a conveyance and grand theft. We reverse and remand for sentencing within the guidelines.

The state charged Williams on October 3, 1991, with burglary of a conveyance and grand theft. Williams was on community control at the time of the offenses. On April 16, 1992, Williams was sentenced to prison for thirty months on the prior charges for which he violated his community control. On July 7, 1992, Williams pled no contest to the present charges. The trial court sentenced Williams to concurrent thirty-month sentences on the burglary of a conveyance and grand theft charges. Williams’ permitted guidelines sentence was four-and-one-half to nine years’ incarceration. The trial court gave as its reason for downward departure that Williams should have been sentenced with the prior cases on April 16, 1992, and the state failed to bring these cases to the court’s attention. If Williams had been sentenced with the prior cases, he would have served the present sentences concurrently with the other cases.

The trial court erred in entering a downward departure sentence based on the reason that Williams should have been sentenced with the other cases on April 16,1992. While a defendant must be sentenced using a single scoresheet for all pending cases, the cases must meet the definition of “pending” set forth in Clark v. State, 572 So. 2d 1387 (Fla.1991). See Harris v. State, 619 So. 2d 1043 (Fla. 4th DCA 1993). “[A]s a general rule, an offense should not be considered as ‘pending’ before the trial court for sentencing unless a verdict of guilt or a plea of guilty or nolo contendere has been obtained.” Clark, 572 So. 2d at 1390-91.

When Williams was sentenced on April 16, 1992, the present charges for burglary of a conveyance and grand theft were not “pending” because Williams did not enter his plea until July 7,1992. Under Clark, if a case is not “pending,” a defendant may request the use of a single scoresheet if it would not result in an unreasonable delay in sentencing. “Moreover, the burden falls on the defendant to move the court for a consolidated sentencing. Failure to make the objection constitutes waiver and raises a procedural bar for appellate review.” Clark, 572 So. 2d at 1391.

Here, Williams admits that he did not seek consolidated sentencing at the sentencing hearing of April 16, 1992. Thus, he waived the right to have the cases considered for consolidation. We hold that under these facts the failure to consolidate the cases is not a clear and convincing reason for downward departure. We reverse the appellant’s judgment and sentence and remand for sentencing within the guidelines.

Reversed and remanded.

RYDER, A.C.J., and ALTENBERND, J., concur.


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