FRANCIS GOLZ, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court improperly imposed new, longer sentences on remand instead of simply running the original sentences concurrently.
Appellant was originally sentenced to two consecutive 5-year terms as a habitual offender. On appeal, the sentences were affirmed but ordered to run c…
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WHATLEY, Judge.
Francis Golz appeals the habitual offender sentences he received on remand. The State correctly concedes the sentences are improper. Golz was originally sentenced to two consecutive terms of 5 years in prison as a habitual offender. In Golz v. State, 674 So. 2d 856 (Fla. 2d DCA 1996), this court affirmed the two sentences but directed the trial court to run the sentences concurrently based on Hale v. State, 630 So. 2d 521 (Fla.1993). On remand, the trial court increased both sentences to 10 years in prison and directed that the sentences run concurrently. This was improper. Pursuant to the mandate, the trial court was not authorized to impose new sentences, but rather to run the sentences concurrently. See Windisch v. State, 709 So. 2d 606 (Fla. 2d DCA 1998). We reverse the sentences and remand with instructions to the trial court to reinstate the original sentences of 5 years in prison and order the sentences to run concurrently.
Sentences reversed and remanded with instructions.
NORTHCUTT, J., Concurs.
ALTENBERND, A.C.J., Concurs specially.
ALTENBERND, Judge,
Concurring.
I agree that our mandate in Golz v. State, 674 So. 2d 856 (Fla. 2d DCA 1996) (Golz I) compels this result. I am not convinced, however, that a simple shift from consecutive to concurrent habitual offender sentencing is the only appropriate remedy for a Hale sentencing error. See Hale v. State, 630 So. 2d 521 (Fla.1993). If the State had requested rehearing in Golz I, I am inclined to believe that we could have lawfully vacated the consecutive sentence and authorized the trial court to enter any lawful habitual offender sentence on that count. In that event, the trial court could have sentenced Mr. Golz as a habitual offender and imposed a 10-year term of imprisonment on that count.
In Hale, the supreme court held that a trial court could not impose consecutive habitual violent offender sentences for offenses arising out of a single criminal episode. Mr. Hale was convicted of sale and possession of cocaine. Although his scoresheet recommended a sentence no longer than 5)4 years’ imprisonment, he was eligible to receive a sentence of 30 years on each count as a habitual violent felony offender. The trial court imposed two consecutive 25-year terms. The supreme court reversed this sentence and ordered that the two terms of imprisonment be served concurrently. The court did not decide whether one of the sentences could have been vacated and replaced with a 30-year sentence. It is noteworthy that the court compared the length of Mr. Hale’s sentences to the severity of his offenses and addressed the issue of cruel and unusual punishment.
Mr. Golz was convicted of two counts of aggravated assault arising from an altercation with four older people at the Pinellas County Fair. He could have received two concurrent 10-year terms of imprisonment as a habitual offender at his initial sentencing. Instead, the trial court imposed two consecutive 5-year terms. If Mr. Golz had objected to the consecutive sentences at his initial sentencing, it appears very probable that he would have received a lawful 10-year term of imprisonment at that time. Thus, he is receiving a 5-year reprieve in this case because he failed to preserve the issue for appeal. I see no logical reason to reach this result. Cf § 924.051, Fla. Stat. (1997).
In cases involving illegal sentences, appellate courts routinely remand for resentencing without specific instructions regarding the new sentence except that it not be illegal. See, e.g., Goggins v. State, 623 So. 2d 590 (Fla. 2d DCA 1993) (resentencing required when defendant received illegal habitual offender sentence due to unconstitutionality of statute). When a trial court unintentionally imposes a departure sentence, we remand for resentencing but permit the trial court to impose a proper departure sentence. See State v. Betancourt, 552 So. 2d 1107, 1108 (Fla.1989); Davis v. State, 697 So. 2d 935 (Fla. 2d DCA 1997). I see no reason why the trial court should not be allowed to resen-tence a habitual offender to lawful concurrent terms so long as North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), is not violated.
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State v. Miyasato, 805 So. 2d 818 (Fla. 2d DCA 2001)…t. Judges of the Eleventh Judicial Circuit v. Janovitz, 635 So. 2d 19 (Fla.1994); Chapman v. St. Stephens Protestant Episcopal Church, 105 Fla. 683, 138 So. 630 (1932). Indeed, the district courts of appeal regularly do so. See, e.g., Golz v. State, 722 So. 2d 210 (Fla. 2d DCA 1998); Francilien v. State, 782 So. 2d 1008 (Fla. 4th DCA 2001); Jones v. State, 773 So. 2d 107 (Fla. 5th DCA 2000). The courts possess this power, even though there is no rule of procedure governing this process. It is difficult to bel…
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Odum v. State, 74 So. 3d 1098 (Fla. 5th DCA 2011)…rt could not impose the concurrent twenty-five year sentence, or any other lawful concurrent sentence, so long as it does not violate the limitations of North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969). See Golz v. State, 722 So. 2d 210, 210-11 (Fla. 2d DCA 1998) (Altenbernd, J., concurring). REVERSED and REMANDED. ORFINGER, C.J., and EVANDER, J., concur.…
Authorities Cited
- North Carolina v. Pearce, 395 U.S. 711 (U.S. 1969)
- Hale v. State, 630 So. 2d 521 (Fla. 1993)
- State v. Betancourt, 552 So. 2d 1107 (Fla. 1989)
- Windisch v. State, 709 So. 2d 606 (Fla. 2d DCA 1998)
- Golz v. State, 674 So. 2d 856 (Fla. 2d DCA 1996)
- Goggins v. State, 623 So. 2d 590 (Fla. 2d DCA 1993)
- Davis v. State, 697 So. 2d 935 (Fla. 2d DCA 1997)