CHARLES SPILLANE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Consecutive habitual offender sentences cannot be imposed for offenses committed as part of the same criminal episode.
Appellant was convicted of possession of burglary tools and burglary of a structure, with evidence showing the tools were used in the burglary and phy…
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CAMPBELL, Judge.
Appellant maintains that he was improperly sentenced to two consecutive habitual offender sentences. We agree and, accordingly, vacate the sentences and remand for re-sentencing.
Appellant was convicted of possession of burglary tools and burglary of a structure and was found to be a habitual offender. The burglary tools that appellant was apprehended with, wire cutters and gloves, both were shown during trial to have been used during the burglary. The wire cutters had traces of the blackish-gray wire from the telephone junction box, and the right glove had a piece missing from the tip of one of the fingers that corresponded with a cut on appellant’s finger. The glass at the burgled restaurant had been broken by the perpetrator to gain entry, and a piece of skin was found on a piece of glass that was similar in size to the piece missing from appellant’s finger. The witness testified that he watched appellant break the drive-up window, enter the building and walk to the cash register. Shortly after the glass was broken, the alarm sounded. We believe these facts are sufficient to conclude that the crimes were committed simultaneously.
Under Hale v. State, 630 So. 2d 521 (Fla.1993) and Smith v. State, at 632 So. 2d 95 (Fla. 2d DCA 1994), a trial court may not impose habitual offender sentences and then run those sentences consecutively where the offenses are committed as part of the same criminal episode. Although the state maintains that Hale only applies to habitual violent felony offenders, we find no merit in this argument in light of language in Hale referring generally to all of section 775.084, Florida Statutes (1993), not only the provisions regarding habitual violent felony offenders. 630 So. 2d at 524. See also Daniels v. State, 595 So. 2d 952 (Fla.1992). Accordingly, we vacate appellant’s consecutive habitual felony offender sentences and remand for resentencing.
RYDER, A.C.J., and PARKER, JJ„ concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Colson v. State, 678 So. 2d 1354 (Fla. 1st DCA 1996)…ender sentences can be imposed to run consecutively only for separate, distinct crimes that do not occur in the course of a single criminal episode. Pace, 662 So. 2d at 1003; Garrison v. State, 654 So. 2d 1176 (Fla. 1st DCA 1994); Spillane v. State, 647 So. 2d 1000 (Fla. 2d DCA 1994). Whether a Hale sentencing issue is raised is a factual question to the extent that it depends on factual evidence involving the time, place, and circumstances of the offenses, information that often cannot be determined from the…
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Nickerson v. State, 684 So. 2d 252 (Fla. 2d DCA 1996)…relief. He argues that the trial court erred in imposing consecutive habitual offender sentences for attempted burglary and possession of burglary tools because the offenses occurred during the same criminal episode. We agree. See Spillane v. State, 647 So. 2d 1000 (Fla. 2d [*253] DCA 1994) (trial court cannot impose consecutive habitual offender sentences for offenses occurring in same criminal episode). Accordingly, we reverse and remand for correction of Nickerson’s sentences to reflect that the sentences s…
Authorities Cited
- Hale v. State, 630 So. 2d 521 (Fla. 1993)
- Berlie Daniels, Jr. v. State, 595 So. 2d 952 (Fla. 1992)
- Owens v. Leisure Mgmt. Miami, Inc., 632 So. 2d 95 (Fla. 3d DCA 1994)