ANTHONY DEVERE DEWITT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Anthony Dewitt appealed his sentence for robbery and battery convictions. The appellate court reversed and remanded because the trial court committed three sentencing errors: imposing consecutive county jail sentences across felony and misdemeanor counts exceeding one year, ordering probation to run concurrently with incarceration, and imposing a public defender's lien without affording Dewitt a hearing to contest the amount.
The court held that all three sentencing actions constituted error. Consecutive sentences on felony and misdemeanor counts cannot result in an aggregate county jail sentence exceeding one year. Probation on a felony count cannot run concurrently with incarceration on other counts. A public defender's lien cannot be imposed without providing the defendant a hearing to challenge the amount.
[1] Imposing consecutive sentences on felony and misdemeanor counts for an aggregate imposition exceeding one year in county jail is improper.
[2] Ordering probation to be served simultaneously with incarceration on other counts is error.
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Join FLexlaw to unlock all legal intelligence“it was error to impose consecutive sentences on the felony and misdemeanor counts for an aggregate imposition exceeding one year in the county jail”
Establishes the first sentencing error regarding consecutive felony-misdemeanor sentences
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Join FLexlaw to unlock all legal intelligenceDewitt pled nolo contendere to one count of second-degree felony robbery and two counts of misdemeanor battery. The sentencing guidelines recommended …
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PER CURIAM.
Anthony Dewitt pled nolo contendere and was adjudicated guilty of one count of robbery 1 (count I) and two counts of battery2 (counts II and III). The robbery count was a second-degree felony; both battery counts were misdemeanors. The recommended guidelines sentence was 7 to 9 years. He was sentenced, however, to a total of 20 months in the county jail, imposed as follows: For count I, he was sentenced to one year in the county jail to be followed by three years probation; for count II, he was sentenced to four months in the county jail, consecutive to the incarceration in count I; and for count III, he was sentenced to four months in the county jail, consecutive to the incarceration in count II. At the sentencing hearing, the trial court explicitly stated that Dewitt would be on probation while serving his sentences for counts II and III in the county jail. The court also ordered a public defender’s lien of $200 at the hearing without apprising Dewitt of his right to a hearing to contest the amount.
We find three errors in connection with Dewitt’s sentence. First, it was error to impose consecutive sentences on the felony and misdemeanor counts for an aggregate imposition exceeding one year in the county jail. Singleton v. State, 554 So. 2d 1162 (Fla.1990), approving, Kline v. State, 509 So. 2d 1178 (Fla. 1st DCA 1987) (improper under section 922.051, Florida Statutes to impose county jail time on felony consecutive to county jail time on misdemeanor when cumulative sentence exceeds one year). Compare Gwynn v. Orange County Bd. of Comm’rs, 527 So. 2d 866 (Fla. 5th DCA 1988) (consecutive sentences resulting in aggregate sentence of more than one year in county jail permissible when all offenses are misdemeanors).
Second, it was error to order probation on count I to be served simultaneously with incarceration on counts II and III. Hill v. State, 624 So. 2d 417 (Fla. 2d DCA 1993). Third, it was error to impose a public defender’s lien at the hearing without apprising Dewitt of his right under Rule 3.720(d)(1) to a hearing to challenge the amount. Fulmore v. State, 634 So. 2d 829 (Fla. 5th DCA 1994); Smith v. State, 622 So. 2d 638 (Fla. 5th DCA 1993).
REVERSED and REMANDED.
GOSHORN, GRIFFIN and THOMPSON, JJ., concur. . § 812.13(2), Fla.Stat. (1993).
. § 784.03, Fla.Stat. (1993).
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Hatton v. State, 689 So. 2d 1195 (Fla. 4th DCA 1997)…I was to be served simultaneously with the inearcerative portion of Count II. The second and fifth districts have held that it is error to order probation on one count to be served simultaneously with incarceration on another count. Dewitt v. State, 639 So. 2d 694 (Fla. 5th DCA 1994); Hill v. State, 624 So. 2d 417 (Fla. 2d DCA 1993). See also Barr v. State, 474 So. 2d 417 (Fla. 2d DCA 1985) (holding it is reversible error to impose concurrent terms of imprisonment and probation). The Florida Supreme Court h…
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McLEOD v. State, 645 So. 2d 116 (Fla. 5th DCA 1994)…appellant without first giving him notice of the intention to assess fees and a hearing regarding the entitlement and amount. See Burke v. State, 642 So. 2d 677 (Fla. 5th DCA 1994); Craig v. State, 643 So. 2d 50 (Fla. 5th DCA 1994); Dewitt v. State, 639 So. 2d 694 (Fla. 5th DCA 1994); Edwards v. State, 639 So. 2d 107 (Fla. 5th DCA 1994); Griffin v. State, 636 So. 2d 589 (Fla. 5th DCA 1994); Fulmore v. State, 634 So. 2d 829 (Fla. 5th DCA 1994); Lynch v. State, 632 So. 2d 710 (Fla. 5th DCA 1994); Smith v. State…
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Meadows v. State, 671 So. 2d 279 (Fla. 3d DCA 1996)…ail may not exceed one year.” Gilbert v. State, 661 So. 2d 960, 961 (Fla. 3d DCA 1995) (citing § 922.051, Fla.Stat. (1993) and Singleton v. State, 554 So. 2d 1162 (Fla.1990)); see Cheney v. State, 640 So. 2d 103 (Fla. 4th DCA 1994); Dewitt v. State, 639 So. 2d 694 (Fla. 5th DCA 1994); Carson v. State, 635 So. 2d 1007 (Fla. 5th DCA 1994); Kline v. State, 509 So. 2d 1178 (Fla. 1st DCA 1987). Accordingly, the sentence imposed is vacated and the cause remanded for resentenc-ing.…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Singleton v. State, 554 So. 2d 1162 (Fla. 1990)
- Kline v. State, 509 So. 2d 1178 (Fla. 1st DCA 1987)
- Bruce v. State, 622 So. 2d 638 (Fla. 2d DCA 1993)
- Domena v. State, 622 So. 2d 638 (Fla. 5th DCA 1993)
- Hill v. State, 624 So. 2d 417 (Fla. 2d DCA 1993)
- Gwynn v. Orange Cnty. Bd. OF Cnty. Comm'rs, 527 So. 2d 866 (Fla. 5th DCA 1988)
- Grabowski v. State, 634 So. 2d 829 (Fla. 4th DCA 1994)
- Fulmore v. State, 634 So. 2d 829 (Fla. 5th DCA 1994)