CALVIN BRUCE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Calvin Bruce appeals the denial of post-conviction relief seeking to have his sentence run concurrent with a separate control release sentence. The court reversed, holding that trial courts have statutory authority under Florida law to order sentences in separate cases run concurrently, and that Bruce's plea was conditioned on this concurrent sentencing arrangement.
Trial courts have discretion under Florida Statute § 921.16(1) to order sentences in independent cases to run either concurrently or consecutively. Because Bruce's plea was expressly conditioned on concurrent sentencing and the trial judge would have granted this had it not mistakenly believed itself without authority, Bruce is entitled to post-conviction relief and correction of his sentence.
[1] A trial court has the discretion to impose concurrent or consecutive sentences for offenses charged in separate indictments or informations.
[2] When a trial court is mistaken about its authority to order concurrent sentences, and this mistake is the sole reason for not imposing concurrent sentences as agreed upon…
Previewing 2 of 4 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“Bruce, through counsel, specifically advised the court that he would accept the plea to seven years imprisonment in this case provided that it run concurrent with the remainder of his control release sentence to be imposed by the Department of Corrections and that credit be given for time served.”
Establishes that the plea agreement was expressly conditioned on concurrent sentencing.
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Join FLexlaw to unlock all legal intelligenceBruce accepted a plea agreement for seven years imprisonment in this case on the express condition that the sentence run concurrent with a control rel…
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PER CURIAM.
Calvin Bruce appeals from the summary denial of his motion for post conviction relief. In this motion, Bruce seeks to have the sentence imposed in this case pursuant to a plea agreement run concurrent with the sentence in another case for the specific revocation of his control release. Bruce argues that this was a condition of his plea entered in this case and that the trial court erred when it determined that it could not run this sentence concurrent with his control release sentence. We agree and reverse.
Bruce was offered and accepted seven years imprisonment for the charges in this ease. At the time, there was a parole hold on Bruce for violation of his conditional release in an unrelated case. Bruce, through counsel, specifically advised the court that he would accept the plea to seven years imprisonment in this case provided that it run concurrent with the remainder of his control release sentence to be imposed by the Department of Corrections and that credit be given for time served. The trial court, concluding that it had no authority to order these sentences run concurrent, only recommended that they run concurrent in the sentencing order. Thereafter, the Department of Corrections ran the sentence imposed in this case consecutive to Bruce’s control release sentence. Bruce filed a motion for postconviction relief below seeking to have the sentencing imposed in this case run concurrent with his control release sentence. When the motion was denied, he instituted this appeal.
Contrary to the assumption made by the sentencing judge below, the legislature has vested the trial court with discretion in criminal cases to impose either concurrent or consecutive sentences in independent cases. § 921.16(1), Fla. Stat. (1993); see also Benyard v. Wainwright, 322 So. 2d 473, 475 (Fla.1975); State v. Hull, 545 So. 2d 510 (Fla. 3d DCA), cause dismissed, 549 So. 2d 1014 (Fla.1989); Snell v. State, 438 So. 2d 1038 (Fla. 2d DCA 1983); McNamara v. State, 324 So. 2d 702 (Fla. 3d DCA 1975), cert. denied, 337 So. 2d 809 (Fla.1976). Section 921.16(1) states as follows:
(1) A defendant convicted of two or more offenses charged in the same indictment, information, or affidavit or in consolidated indictments, informations, or affidavits shall serve the sentences of imprisonment concurrently unless the court directs that two or more of the sentences be served consecutively. Sentences of imprisonment for offenses not charged in the same indictment, information, or affidavit shall be served consecutively unless the court directs that two or more of the sentences be served concurrently. (emphasis added)
Where the trial judge fails to specify whether sentences imposed for offenses not charged in the same information or indictment be served concurrently, section 921.16(1) die- tates that such sentences be served consecutively. Benyard, 322 So. 2d at 475.
It is clear in the instant case that Bruce entered his plea in this case upon the express condition that the resultant sentence be served concurrent with his control release sentence to be imposed in a prior ease. It is equally clear that the trial judge would have specifically ordered both of these sentences be served concurrently had the court not been mistaken about its authority to do so. Under circumstances virtually identical to those presented here, the Second District Court of Appeal in Kirkland v. State, 633 So. 2d 1138 (Fla. 2d DCA 1994) held that the petitioner was entitled to have his judgment corrected to reflect that the separate sentences imposed would be served concurrently. We find that the same result should obtain here.
Accordingly, we reverse the order denying posteonviction relief and remand this case with instructions to correct the judgment and sentence to reflect that the sentence imposed in this case run concurrently with the sentence imposed by the Department of Corrections for violation of control release.
Reversed and remanded with instructions.
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Citator
Cited By (13 total)
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Callvester Smith v. State, 807 So. 2d 733 (Fla. 3d DCA 2002)…the appellant’s sentences were to run concurrent or consecutive to his violation of conditional release, the Department of Corrections deemed the sentences to run consecutive pursuant to section 921.16(1), Fla. Stat. (1995). See also Brace v. State, 679 So. 2d 45 (Fla. 3d-DCA 1996). Where, as here, the record of the plea hearing and the sentencing order are silent as to whether the appellant’s sentences are to run concurrent or consecutive to his violation of conditional release, the State correctly conced…
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McCARTHUR v. State, 766 So. 2d 292 (Fla. 4th DCA 2000)…r’s control release violation in an earlier case.1 Instead, the court left the matter to the Parole Commission to decide. The legislature vested the courts with the authority to make this determination. See § 921.16(1), Fla. Stat.; Bruce v. State, 679 So. 2d 45 (Fla. 3d DCA 1996). Even where no decision has been made on the control release violation by the time of sentencing, the trial court still has the discretion to run the sentence either concurrently or consecutively to any future punishment for the v…
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Eblin v. State, 743 So. 2d 94 (Fla. 2d DCA 1999)…be six years longer than if the sentences were concurrent. He also claims his gain time awards have been adversely affected. The facts in this case closely resemble those in Kirkland v. State, 633 So. 2d 1138 (Fla. 2d DCA 1994), and Bruce v. State, 679 So. 2d 45 (Fla. 3d DCA 1996). Like Kirkland and Bruce, the only reason Mr. Eblin’s sentences are not concurrent is because the trial court mistakenly believed [*95] it did not have the authority to order the Department of Corrections to treat the sentences in…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Benyard v. Louie L. Wainwright, 322 So. 2d 473 (Fla. 1975)
- Kirkland v. State, 633 So. 2d 1138 (Fla. 2d DCA 1994)
- McNAMARA v. State, 324 So. 2d 702 (Fla. 3d DCA 1975)
- Snell v. State, 438 So. 2d 1038 (Fla. 2d DCA 1983)
- State v. Hull, 545 So. 2d 510 (Fla. 3d DCA 1989)
- Brown v. State, 545 So. 2d 510 (Fla. 3d DCA 1989)