MARK ALLAN DIETRICH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court affirmed the convictions but vacated the sentence due to improper consecutive sentencing for crimes arising from a single criminal episode.
[1] A habitual offender sentence may not be enhanced by ordering consecutive sentences when the underlying offenses occurred during a single criminal episode.
[2] Convictions for aggravated assault and battery arising from a single criminal episode are affirmed when appellate counsel's Anders brief raises no meritorious issues rega…
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Join FLexlaw to unlock all legal intelligenceAppellant was convicted of aggravated assault and battery against two victims during a single domestic dispute. The trial court imposed consecutive se…
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DANAHY, Acting Chief Judge.
In this appeal from convictions for two counts of aggravated assault and one count of battery, appellate counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), suggesting two issues of possible error in the convictions. In accord with In re Anders Briefs, 581 So. 2d 149 (Fla.1991), we have carefully reviewed the record and find no merit in either of them. We do find error, however, in the sentencing scheme and reverse as to that issue.
The convictions for aggravated assault and battery involved two victims, the appellant’s ex-girlfriend and her granddaughter. There is no dispute that both assaults and the one battery occurred during a single criminal episode which consisted of a domestic dispute.1 The trial court sentenced the appellant to five years on each count as a habitual offender, the sentences on the three counts to be served consecutively. Because the facts clearly show that the crimes occurred during one criminal episode, this enhanced sentencing scheme is in violation of Hale v. State, 630 So. 2d 521 (Fla.1993).
When a sentencing court enhances a sentence pursuant to the habitual offender statute, § 775.-084, Fla.Stat. (1991), the court may not further enhance the penalty by ordering the individual sentences to be served consecutively if the violations occurred during a single criminal episode. This is precisely the error which occurred here. We affirm the convictions for aggravated assault and battery but vacate the sentence. We recognize that the trial judge did not have the benefit of the supreme court’s ruling at the time he sentenced the appellant. We remand for entry of a sentencing order in conformance with Hale.
CAMPBELL and ALTENBERND, JJ., concur. . The appellant was also convicted of the offense of failing to appear while on bond which occurred on a separate date. The conviction and sentence for this crime, which was ordered to be served consecutively to the sentences for the assaults and the battery, are not at issue in this appeal.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (16 total)
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Callaway v. State, 642 So. 2d 636 (Fla. 2d DCA 1994)…to be imposed consecutively. While not fully explained in [*639] the opinion, this court has recently applied Hale in a direct appeal involving a habitual offender sentence, as compared to a habitual violent offender sentence. See Dietrich v. State, 635 So. 2d 148 (Fla. 2d DCA 1994). Two other districts appear to have applied Hale to sentences that were not habitual violent offender sentences. See Goshay v. State, 19 Fla.L.Weekly D1715, 1994 WL 419574 (Fla. 1st DCA Aug. 12, 1994); Sirmans v. State, 638 So. 2d…
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Goshay v. State, 646 So. 2d 213 (Fla. 1st DCA 1994)…Id. Accordingly, a trial court commits reversible error when it imposes consecutive habitual felony offender sentences for offenses committed during a single criminal episode. Walker v. State, 636 So. 2d 207 (Fla. 1st DCA 1994); Dietrich v. State, 635 So. 2d 148 (Fla. 2d DCA 1994). Because the offenses for which Go-shay was convicted arose out of a single criminal episode, the trial court erred in both enhancing Goshay’s sentences by use of the habitual offender statute and imposing the sentence for Count…
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Hollice Lafleur v. State, 661 So. 2d 346 (Fla. 3d DCA 1995)…d for aggravated assault as to counts 4 and 5, we conclude that the entire series of events constituted a single criminal episode. See Wilson v. State, 467 So. 2d 996 (Fla.1985); Parker-v. State, 633 So. 2d 72 (Fla. 1st DCA 1994); Dietrich v. State, 635 So. 2d 148 (Fla. 2d DCA 1994). As a result, these sentences—and their five-year min-man terms— must be made concurrent. Hale v. State, 630 So. 2d 521 (Fla.1993), cert, denied, — U.S. -, 115 S.Ct. 278, 130 L.Ed.2d 195 (1994). 3. For the same reason, the five m…
Previewing 3 of 16 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- Hale v. State, 630 So. 2d 521 (Fla. 1993)
- In re App. Court Response to Anders Briefs, 581 So. 2d 149 (Fla. 1991)