JAY FINE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jay Fine appeals his resentencing for three robbery convictions after his initial 20-year concurrent sentences were found to exceed the statutory maximum and remanded. The court holds that Fine is entitled to the benefit of his plea bargain requiring concurrent sentences, not the consecutive sentences imposed on remand, and remands again to allow Fine either to accept concurrent sentences or withdraw his plea.
Fine is entitled to the benefit of his plea bargain and must receive concurrent sentences as agreed. The court reverses and remands, directing that if Fine is unhappy with concurrent sentencing (with the sole revision that the robbery sentences run concurrent with the separate case), he should be permitted to withdraw his plea.
[1] A defendant is entitled to the benefit of a plea bargain agreement.
[2] A trial court may not impose a sentence that exceeds the statutory maximum for the offense.
Previewing 2 of 5 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“he bargained for concurrent sentences — not consecutive ones. He is entitled to the benefit of his bargain, but so is the state.”
Establishes the core principle that Fine must receive the concurrent sentencing he agreed to, while the state retains its own bargained-for rights
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Join FLexlaw to unlock all legal intelligenceFine entered a no contest plea to three counts of second-degree robbery with a statutory maximum of 15 years per count. The plea agreement required th…
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Fine entered a no contest plea to three counts of robbery, second degree felonies, for which fifteen years is the statutory maximum sentence.1 The plea agreement required that the three sentences run concurrent with each other and concurrent to an unrelated case for which Fine received a 15-year sentence, and that they not exceed 20 years.
The trial court sentenced Fine to 20 years on each robbery to run concurrent with each other and the unrelated sentence. However, because the 20-year sentences exceed the statutory maximum, this court remanded to the trial court for resentencing pursuant to a motion to do so filed by the state.
On remand, the trial court sentenced Fine to 88.5 months on two of the robberies, and 80 months on the third, all to run consecutive to each other. The combined effect of these sentences is a sum in excess of the 20 years bargained for, but because the trial court additionally awarded excess credit for time served, the practical effect is approximately 20 years. Fine argues, at this point, that the sentences are not pursuant to his plea bargain agreement because he bargained for concurrent, not consecutive, sentences. Fine also points out that the sentences do not provide that they are to be served concurrent with the other criminal case, and if served consecutively, would extend his prison time an additional 15 years.
We are tempted to simply affirm these sentences since they are “legal,” and they parallel the practical effect of the plea bargain, with sole correction that pursuant to the plea agreement they should run concurrent with the 15 year sentence in the other case. However, as Fine points out, he bargained for concurrent sentences — not consecutive ones. He is entitled to the benefit of his bargain, but so is the state.
Accordingly, we remand this cause one more time. If Fine is unhappy with this current sentencing package (with the sole revision that the robbery sentences run concurrent with the other case) then he should be permitted to withdraw his plea. The state would then be free to prosecute a burglary count against Fine, which it nol prossed, and it could also seek to have Fine sentenced as a violent career criminal, which also was not pursued by the state as part of the plea agreement.
REVERSED and REMANDED for further proceedings consistent with this opinion.
PETERSON and ANTOON, JJ., concur. . § 775.082(3)(c), Fla. Stat.
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Small v. State, 249 So. 3d 675 (Fla. 2d DCA 2018)
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Ballard v. State, 741 So. 2d 1212 (Fla. 2d DCA 1999)…1988). Accordingly, we reverse and remand with instructions to the trial court to allow Ballard to withdraw his pleas. On remand, the State may again charge Ballard with the counts it nolle prossed as part of the plea agreement. See Fine v. State, 728 So. 2d 307 (Fla. 5th DCA 1999); Geiger, 532 So. 2d at 1298. Reversed and remanded with directions. CAMPBELL, A.C.J., and STRINGER, J., Concur.…