GREGORY MCCARTHUR, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred by refusing to exercise its discretion in determining whether a sentence should run concurrently or consecutively to a control release violation sentence.
The trial court declined to decide whether Gregory McCarthur's sentence should run concurrently or consecutively to a punishment for a control release…
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PER CURIAM.
We reverse the denial of Gregory McCarthur’s postconviction motion. The trial court expressly declined to exercise its discretion under section 921.16(1), Flor ida Statutes (1997), to decide whether the sentence imposed in this case would run concurrently or consecutively to the punishment to be imposed for McCarthur’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 violation. See Scantling v. State, 711 So. 2d 524 (Fla.1998). McCarthur is entitled to postconviction relief because, in his case, the trial court refused to exercise its lawful discretion.
We, therefore, reverse the order denying McCarthur’s motion. On remand, the trial court shall resentence McCarthur to the same term, but shall provide for that term to run either concurrently or consecutively to the period of incarceration imposed on the control release violation.
DELL, STEVENSON and TAYLOR, JJ., concur. . We find that the record conclusively disproves McCarthur’s claim that the terms of his plea agreement required concurrent sentences.
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Williams v. State, 186 So. 3d 989 (Fla. 2016)…each offense committed against them, in all criminal convictions, where the sentence is to. a term of imprisonment, the court can, in its discretion, fix the term so that it will begin at the expiration of a former sentence.”)); McCarthur v. State, 766 So. 2d 292, 293 (Fla. 4th DCA 2000) (“[T]he trial court still has the discretion to run the sentence either concurrently or consecutively to any future punishment for the [control-release] violation.”) (citing Scantling v. State, 711 So. 2d 524, 524 (Fla.l998)…
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Richardson v. State, 947 So. 2d 1219 (Fla. 1st DCA 2007)…sentence and cannot defer the structure of the sentence to the Department of Corrections because the Department lacks such sentencing authority. § 921.16(1), Fla. Stat. (2004); Byrd, v. State, 853 So. 2d 1103 (Fla. 4th DCA 2003); McCarthur v. State, 766 So. 2d 292 (Fla. 4th DCA 2000)(holding that the trial court must exercise its discretion to sentence the offender to concurrent or consecutive sentences); Art. I, § 18, Fla. Const, (barring an administrative agency from imposing a sentence of imprisonment); Pe…
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Byrd v. State, 853 So. 2d 1103 (Fla. 4th DCA 2003)…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.” In McCarthur v. State, 766 So. 2d 292 (Fla. 4th DCA 2000), this court reversed an order where the trial court left the decision of whether the sentence would run consecutively or concurrently in the hands of the parole commission. Id In MeCarthwr, the panel pointed out that the legislat…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bruce v. State, 679 So. 2d 45 (Fla. 3d DCA 1996)
- Teayoir Scantling v. State, 711 So. 2d 524 (Fla. 1998)