DAVID WAYNE LIPFORD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant's convictions affirmed but habitual felony offender sentences vacated because consecutive sentences for crimes from a single criminal episode violate Hale v. State and constitute fundamental error remediable on direct appeal.
Consecutive habitual felony offender sentences for crimes arising from a single criminal episode are illegal and constitute fundamental error remediable on direct appeal even if not challenged at trial.
[1] Consecutive habitual felony offender sentences imposed for crimes arising from a single criminal episode violate the habitual felony offender statute and constitute illeg…
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Join FLexlaw to unlock all legal intelligence“the habitual felony offender statute does not authorize consecutive habitual felony offender sentences for crimes growing out of a single criminal episode”
Court explaining the holding of Hale v. State that prohibits consecutive HFO sentences for crimes from single criminal episode
Appellant was convicted of five crimes committed in a single criminal episode and sentenced as a habitual felony offender with consecutive sentences.…
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PER CURIAM.
The appellant challenges his convictions and sentences for five crimes committed in the course of a single criminal episode. We affirm the appellant’s convictions, but we vacate the habitual felony offender sentences imposed for these crimes because the trial court committed fundamental error in directing that the sentences be served consecutively.
As the appellee concedes, the appellant’s sentences are prohibited by Hale v. State, 680 So. 2d 521 (Fla.1994), wherein the supreme court held that the habitual felony offender statute does not authorize consecutive habitual felony offender sentences for crimes growing out of a single criminal episode. Although the appellant did not challenge his sentences in the trial court, the Hale violation is nevertheless remediable in this direct appeal as fundamental error because a Hale violation constitutes an “illegal” sentence. See Sanders v. State, 698 So. 2d 377 (Fla. 1st DCA 1997)(“[I]llegal sentences necessarily constitute fundamental error, and may therefore be challenged for the first time on direct appeal.”); State v. Mancino, 714 So. 2d 429 (Fla., 1998)(“A sentence that patently fails to comport with statutory ... limitations is by definition ‘illegal’.”). See also Nelson v. State, 719 So. 2d 1230 (Fla. 1st DCA 1998) (en banc).
Accordingly, the appellant’s convictions are affirmed, but his sentences are vacated and this case is remanded to the trial court for the appellant to be resentenced.
ALLEN and KAHN, JJ., CONCUR; JOANOS, J., SPECIALLY CONCURS WITH OPINION.
JOANOS, J.,
specially concurring.
I concur in the affirmation of the convictions. I also concur in the result as to the sentences because we are bound by Nelson v. State, 719 So. 2d 1230 (Fla. 1st DCA 1998) (en banc).
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Cited By
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Jordan v. State, 754 So. 2d 876 (Fla. 1st DCA 2000)…of a single criminal episode. Although the defendant did not object at the time of sentencing or subsequently file a rule 3.800(b) motion in the trial court, we may review his sentence on direct appeal because it is “illegal”. See Lipford v. State, 736 So. 2d 62 (Fla. 1st DCA 1999). Affirmed in part and reversed in part. JOANOS, WEBSTER and PADOVANO, JJ., CONCUR.…
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Shalone Lewis v. State, 141 So. 3d 748 (Fla. 3d DCA 2014)…the habitual violent felony offender statute for convictions that arose from a single criminal episode. These sentences are illegal and can be remedied on plenary appeal, regardless of the defendant’s failure to preserve the issue. Lipford v. State, 736 So. 2d 62 (Fla. 1st DCA 1999); Jordan v. State, 754 So. 2d 876 (Fla. 1st DCA 2000). Because this error is evident on the face of this record, we remand the case for the trial court to impose concurrent sentences. The defendant need not be present. Affirmed…
Authorities Cited
- State v. Mancino, 714 So. 2d 429 (Fla. 1998)
- Nelson v. State, 719 So. 2d 1230 (Fla. 1st DCA 1998)
- Sanders v. State, 698 So. 2d 377 (Fla. 1st DCA 1997)