LANCE D. WINDISCH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Lance Windisch appeals sentences imposed at resentencing following his successful postconviction relief motion claiming his consecutive sentences violated Hale v. State. The court reverses and remands, holding that under Hale, the trial court erred by imposing new sentences rather than simply ordering the originally imposed sentences to run concurrently.
The trial court erred by imposing new sentences; under Hale, the remedy is to order the previously imposed sentences to run concurrently. Windisch was not entitled to counsel at resentencing because correcting Hale sentencing errors is a ministerial function not requiring a defendant's presence.
[1] A trial court errs by imposing new sentences when correcting consecutive habitual offender sentences for offenses committed during a single criminal episode, as the remed…
[2] The correction of habitual offender sentencing errors under Hale v. …
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Join FLexlaw to unlock all legal intelligence“Under Hale, the remedy available to the trial court was to simply order the previously imposed sentences to run concurrently.”
Establishes the proper remedy for Hale sentencing errors is limited to ordering existing sentences concurrent, not imposing new sentences
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Join FLexlaw to unlock all legal intelligenceWindisch was convicted on a three-count information following a jury trial and received consecutive sentences as a habitual offender. He filed a timel…
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BLUE, Acting Chief Judge.
Lance D. Windisch appeals the sentences imposed following his successful postconvietion relief motion. Because of several errors that occurred at the resentencing hearing, we reverse and remand with instructions.
Following a jury trial, Windisch was convicted and sentenced on a three-count information. He subsequently filed a timely motion for postconviction relief alleging that his consecutive sentences were in violation of Hale v. State, 630 So. 2d 521 (Fla.1993). The trial court granted Windisch’s motion. However, in addition to removing the consecutive conditions, the court imposed new sentences on each count.
In Hale, the Florida Supreme Court prohibited consecutive habitual offender sentences for offenses committed during a single criminal episode. The court remanded “with instructions that Hale’s enhanced sentences be ordered to run concurrently.” 630 So. 2d at 525. Under Hale, the remedy available to the trial court was to simply order the previously imposed sentences to run concurrently. In reviewing Hale sentencing errors, this court has consistently applied the Hale instruction and remanded with directions to run the imposed sentences concurrently. See Bell v. State, 679 So. 2d 1275 (Fla. 2d DCA 1996); Golz v. State, 674 So. 2d 856 (Fla. 2d DCA 1996); Rolle v. State, 668 So. 2d 1080 (Fla. 2d DCA 1996); Brown v. State, 630 So. 2d 596 (Fla. 2d DCA 1993). See also Brown v. State, 647 So. 2d 333 (Fla. 3d DCA 1994); Suggs v. State, 681 So. 2d 870 (Fla. 5th DCA 1996). Applying Hale to Windisch, we conclude that the trial court erred by imposing new sentences.
Windisch contends that he was entitled to be represented by counsel at the resentencing hearing. Because correcting Hale sentencing errors is a ministerial-type function, case law provides that a defendant’s presence is not required. See Bell, 679 So. 2d at 1276; Golz, 674 So. 2d at 857; Rolle, 668 So. 2d at 1081; Suggs, 681 So. 2d at 870; Brown, 647 So. 2d at 334; Brown, 630 So. 2d at 597. Therefore, the court did not err by failing to appoint counsel.
Accordingly, we reverse the sentences and remand with instructions to the trial court to reinstate the originally imposed sentences, and to correct those sentences by ordering them to run concurrently. We note that, apparently as a clerical error, the sentences under review fail to reflect they were imposed concurrently with a previously existing sentence from Citrus County. On remand, the corrected sentences should reflect that they are concurrent with the Citrus County case. As pointed out above, Windisch’s presence at resentencing is not required.
Reversed and remanded with instructions.
WHATLEY and NORTHCUTT, JJ., concur.
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Glowacki v. State, 894 So. 2d 288 (Fla. 2d DCA 2005)…must enter a new judgment and sentence indicating the objected-to costs have been stricken. We therefore reverse and remand for the ministerial entry of a corrected judgment and sentence at which Glowacki need not be present. See Windisch v. State, 709 So. 2d 606 (Fla. 2d DCA 1998). Affirmed in part, reversed in part, and remanded. CASANUEVA and KELLY, JJ., Concur.…
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Windom v. State, 984 So. 2d 678 (Fla. 5th DCA 2008)…ez v. State, 2008 WL 649479, 33 Fla. L. Weekly D721 (Fla. 3d DCA Mar 12, 2008), it is not necessary for the appellant to be present in person at the resentencing. See also Richardson v. Moore, 754 So. 2d 64, 65 (Fla. 3d DCA 2000); Windisch v. State, 709 So. 2d 606, 607 (Fla. 2d DCA 1998). AFFIRMED and REMANDED. PLEUS, MONACO and COHEN, JJ., concur.…
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Velez v. State, 988 So. 2d 707 (Fla. 3d DCA 2008)…ence. The reduction of the sentence on count one to the legal maximum, thirty years, was a ministerial act and the defendant was not entitled to be personally present. See Richardson v. Moore, 754 So. 2d 64, 65 (Fla. 3d DCA 2000); Windisch v. State, 709 So. 2d 606, 607 (Fla. 2d DCA 1998). In his second point, the defendant challenges the life sentence and three-year mandatory minimum sentence imposed for count two, armed burglary. This claim was raised by the defendant in a previous rule 3.800(a) motion, the…
Previewing 3 of 15 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hale v. State, 630 So. 2d 521 (Fla. 1993)
- Pearce v. Sheffey, 647 So. 2d 333 (Fla. 2d DCA 1994)
- Golz v. State, 674 So. 2d 856 (Fla. 2d DCA 1996)
- Suggs v. State, 681 So. 2d 870 (Fla. 5th DCA 1996)
- Carlton J. Brown v. State, 630 So. 2d 596 (Fla. 2d DCA 1993)
- Rolle v. State, 668 So. 2d 1080 (Fla. 2d DCA 1996)
- Bell v. State, 679 So. 2d 1275 (Fla. 2d DCA 1996)