TODD I. HOWARD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Todd Howard appealed from a denial of his postconviction relief motion, challenging his sentencing on robbery and firearm charges. The appellate court found that while the trial court properly denied certain rule 3.850 claims as untimely, it erred in imposing consecutive habitual offender and mandatory minimum sentences arising from a single criminal episode, and in issuing sentencing orders that conflicted with its pronouncement.
The trial court properly denied rule 3.850 claims as untimely but erred in imposing consecutive habitual offender and mandatory minimum sentences because all offenses arose from a single criminal episode. The court also erred in failing to conform written sentencing orders to its oral pronouncement. The case was remanded for the trial court to correct these errors by making sentences run concurrently and conforming the written orders to the pronouncement.
[1] A motion for postconviction relief filed under Rule 3.850 must be timely filed.
[2] A trial court does not err in refusing to use a sentencing guidelines scoresheet when sentencing under the habitual offender statute.
Previewing 2 of 6 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the trial court correctly concluded that appellant failed to timely file the motion with respect to the rule 3.850 issues. However, appellant timely raised four issues under the provisions of rule 3.800(a).”
Establishes the procedural distinction between timely and untimely postconviction claims
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Join FLexlaw to unlock all legal intelligenceHoward was convicted of two counts of robbery (of a vehicle's driver and passenger) and one count of carrying a concealed firearm. The state conceded …
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PER CURIAM.
Todd Howard appeals from an order denying his motion for postconviction relief. Appellant filed his motion pursuant to Florida Rules of Criminal Procedure 3.850 and 3.800(a).
The trial court correctly concluded that appellant failed to timely file the motion with respect to the rule 3.850 issues.
However, appellant timely raised four issues under the provisions of rule 3.800(a). As to those issues, we find no merit in appellant’s challenge of the constitutionality of section 775.084, Florida Statutes (1989), nor in his contention that the trial court erred in not using a sentencing guidelines scoresheet. See Reeves v. State, 612 So. 2d 560 (Fla.1992); § 775.084(4)(e), Fla.Stat. (1989); Holley v. State, 577 So. 2d 624 (Fla. 1st DCA 1991).
We find merit in appellant’s claim that the trial court erred when it imposed consecutive habitual offender sentences and consecutive mandatory minimum sentences and erred in entering written sentencing orders that did not conform to its pronouncement of sentence.
The trial court adjudicated appellant guilty on two counts of robbery of the driver and passenger of a vehicle and one count of carrying a concealed firearm. The state concedes that appellant’s convictions arose from one criminal episode.
Therefore, we hold that the trial court erred when it sentenced appellant as a habitual violent felony offender to consecutive thirty-year terms. See Brooks v. State, 630 So. 2d 527 (Fla.1993); Hale v. State, 630 So. 2d 521 (Fla.1993), cert. denied, — U.S. —, 115 S.Ct. 278, 130 L.Ed.2d 195 (1994); Koon v. State, 640 So. 2d 1226 (Fla. 2d DCA 1994). We further hold that the trial court erred when it imposed consecutive mandatory minimum sentences pursuant to section 775.084(4)(b), Florida Statutes (1989), the habitual offender statute. See Daniels v. State, 595 So. 2d 952 (Fla.1992); Austin v. State, 625 So. 2d 1316 (Fla. 4th DCA 1993).
Appellant also correctly argues that the trial court erred when it failed to sentence him in accord with its pronouncement of sentence. Although the trial court stated in open court that it would sentence appellant as a habitual violent felony offender to two consecutive thirty-year terms with two consecutive ten-year mandatory mínimums, it later issued several orders that conflicted with each other and the open-court declaration of sentence. Therefore, we must remand this case for the trial court to conform the written orders to its pronouncement of sentence. See Allen v. State, 640 So. 2d 1198 (Fla. 4th DCA 1994); Bartlett v. State, 638 So. 2d 631 (Fla. 4th DCA 1994).
Accordingly, we reverse and remand this cause with instructions for the trial court to conform the written sentencing orders to its open-court declaration of sentence and to order that the habitual offender sentences and the mandatory minimum sentences run concurrently. The trial court’s order denying appellant’s motion for postconviction relief pursuant to rule 3.850 is affirmed.
AFFIRMED IN PART; REVERSED IN PART and REMANDED.
DELL, C.J., and KLEIN and PARIENTE, JJ., concur.
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MacIas v. State, 673 So. 2d 176 (Fla. 4th DCA 1996)…at the escape was a separate and independent offense. Although a consecutive sentence on the escape charge was proper, consecutive sentences for the remaining charges were not because they arose out of the same criminal episode. See Howard v. State, 648 So. 2d 1250 (Fla. 4th DCA 1995). The trial court also imposed consecutive minimum mandatory sentences on Counts I, III and VIII. Under Daniels, 595 So. 2d at 952, minimum mandatories imposed as a result of sentencing as a habitual violent felony offender must…
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Octavius Y. Johnson v. State, 652 So. 2d 986 (Fla. 4th DCA 1995)…with instruction to the trial court to impose the enhanced sentences concurrently. Brooks v. State, 630 So. 2d 527 (Fla.1993); Hale v. State, 630 So. 2d 521 (Fla.1993), cert, denied, — U.S. —, 115 S.Ct. 278, 130 L.Ed.2d 195 (1994). Howard v. State, 648 So. 2d 1250 (Fla. 4th DCA 1995). GLICKSTEIN and SHAHOOD, JJ., and GRIFFIN, JACQUELINE R., Associate Judge, concur.…
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Rubin Long v. State, 657 So. 2d 67 (Fla. 4th DCA 1995)…aried from the sentence pronounced in open court. We reverse the order denying appellant relief from this illegal sentence and direct the trial court on remand to consider appellant’s claim of nonconformance under rule 3.800(a). See Howard v. State, 648 So. 2d 1250, 1251 (Fla. 4th DCA 1995). We affirm appellant’s conviction and sentence in all other respects. AFFIRMED IN PART; REVERSED IN PART and REMANDED. GUNTHER, C.J., and DELL and STONE, JJ., concur.…
Authorities Cited
- Hale v. State, 630 So. 2d 521 (Fla. 1993)
- Berlie Daniels, Jr. v. State, 595 So. 2d 952 (Fla. 1992)
- Brooks v. State, 630 So. 2d 527 (Fla. 1993)
- Sartori v. Brinkley, 638 So. 2d 631 (Fla. 4th DCA 1994)
- Reeves v. State, 612 So. 2d 560 (Fla. 1992)
- Holley v. State, 577 So. 2d 624 (Fla. 1st DCA 1991)
- Koon v. State, 640 So. 2d 1226 (Fla. 2d DCA 1994)
- A.R.A. Humane Soc'y OF Okeechobee Cnty. v. Okeechobee Cnty., 640 So. 2d 1198 (Fla. 4th DCA 1994)
- Austin v. State, 625 So. 2d 1316 (Fla. 4th DCA 1993)
- Bass v. State, 625 So. 2d 1316 (Fla. 4th DCA 1993)