JAY CANAVAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Jay Canavan appealed the summary denial of his motion to correct an illegal sentence for two counts of lewd and lascivious assault on a child. The court reversed, finding that Canavan's motion was facially sufficient and that consecutive habitual offender sentences imposed for offenses arising from a single criminal episode violated Hale v. State.
The motion was facially sufficient because it identified portions of the record (the information and presentence investigation report) demonstrating that the offenses arose from a single criminal episode. Consecutive habitual offender sentences imposed for offenses arising from a single criminal transaction are illegal under Hale v. State.
[1] Consecutive habitual offender sentences imposed for offenses arising from a single criminal episode may constitute an illegal sentence.
[2] A motion to correct an illegal sentence is facially sufficient if it identifies portions of the record that support the claim that offenses arose from a single criminal e…
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Join FLexlaw to unlock all legal intelligence“a defendant who was adjudicated a habitual offender and sentenced to 10 years incarceration followed by probation received an illegal sentence because the offenses arose from a single criminal episode”
Establishes the legal principle that consecutive habitual offender sentences for a single criminal episode are illegal
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Join FLexlaw to unlock all legal intelligenceCanavan pleaded guilty in 1993 to two counts of lewd and lascivious assault upon a child. He was sentenced as a habitual felony offender to 25 years i…
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THOMPSON, C.J.
Jay Canavan appeals the summary denial of his motion to correct an illegal sentence. Canavan pleaded guilty in 1993 to two counts of lewd and lascivious assault upon a child and was sentenced as a habitual felony offender to 25 years in jail on the first count, and a consecutive 15 years of probation on the second count. He alleges that his offenses arose from a single incident, and therefore, his two consecutive habitual offenses must run concurrent under Hale v. State, 630 So. 2d 521 (Fla.1993).
Canavan points out that the convictions involved similar acts upon the victim, and both occurred on the same day. Canavan alleges that the face of the record, including the information and the pre-sentence investigation report, demonstrates that the two offenses occurred at the same time. After a review of the record, we agree and reverse.
The trial court summarily denied Cana-van’s motion, pointing out that a claim is facially insufficient if the defendant fails to allege where and how the record supports his claim that consecutive habitual offender sentences were imposed for offenses occurring in a single criminal transaction. See Phipps v. State, 806 So. 2d 565 (Fla. 1st DCA 2002).
The court also found that Canavan did not receive consecutive habitual offender sentences and had failed to state a facially sufficient claim under Hale. A copy of the sentence was attached to the court’s order and shows that Canavan was sentenced to 25 years incarceration for count one, with a notation that he was being sentenced as a habitual offender, followed by 15 years probation, with no express notation that the latter was as a habitual offender. In West v. State, 790 So. 2d 518 (Fla. 5th DCA 2001), we held that a defendant who was adjudicated a habitual offender and sentenced to 10 years incarceration followed by probation received an illegal sentence because the offenses arose from a single criminal episode. See also Whitfield v. State, 804 So. 2d 1274 (Fla. 5th DCA 2002); Johnson v. State, 809 So. 2d 892 (Fla. 2d DCA 2002); Benjamin v. State, 667 So. 2d 437 (Fla. 2d DCA 1996); Taylor v. State, 658 So. 2d 635 (Fla. 2d DCA 1995).
But see Davis v. State, 710 So. 2d 1051 (Fla. 1st DCA 1998) (where defendant was found to be a habitual offender only as to count one, consecutive probation term on count two was not erroneous although the offenses arose from a single episode).
We conclude that Canavan’s motion was facially sufficient because it identified the portions of the record that would show that his offenses arose out of a single criminal episode. Although Canavan attached the information and the plea agreement to his motion instead of, as he probably intended, the information and the presentence investigation report, his motion alleged that the information and the presentence investigation report demonstrate that the two offenses occurred at the same time.
Accordingly, we reverse and remand for the trial court to either attach portions of the record establishing that the offenses in question did not arise from a single criminal episode or correct the sentences. Compare, West; Whitfield.
REVERSED and REMANDED.
GRIFFIN and TORPY, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Fuller v. State, 867 So. 2d 469 (Fla. 5th DCA 2004)…entence consecutive to an habitual offender sentence where both crimes arose from the same criminal episode. Although not cited by either party in their briefs on appeal, we have previously answered this question in the negative in Canavan v. State, 842 So. 2d 306 (Fla. 5th DCA 2003). When we offered the State an opportunity to address this case in light of Canavan, the rather vague response we received was less than helpful, but apparently acknowledged that our disposition of this case is governed by Canavan…
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Dawson v. State, 951 So. 2d 931 (Fla. 4th DCA 2007)…eme is utilized to enhance a sentence beyond the statutory maximum on one or more counts arising from a single criminal episode, consecutive sentencing may not be used to further lengthen the overall sentence.” Id. at 470. See also Canavan v. State, 842 So. 2d 306 (Fla. 5th DCA 2003). In this case, where both charges arose out of possession and sale of the same cocaine, imposing the possession sentence consecutive to the enhanced habitual offender sentence was error. We thus affirm appellant’s convictions bu…
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Taylor v. State, 969 So. 2d 489 (Fla. 5th DCA 2007)…) proceeding because error clear on face of record); see also Simms v. State, 949 So. 2d 373 (Fla. 4th DCA 2007); Harris v. State, 875 So. 2d 735, 737 (Fla. 2d DCA 2004); Perreault v. State, 853 So. 2d 604, 606 (Fla. 5th DCA 2003); Canavan v. State, 842 So. 2d 306 [*491] (Fla. 5th DCA 2003); Whitfield v. State, 804 So. 2d 1274 (Fla. 5th DCA 2002). While this Court has recognized this exception, it has never explicitly stated what must be alleged to plead a facially sufficient single criminal episode claim un…
Previewing 3 of 5 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)
- Benjamin v. State, 667 So. 2d 437 (Fla. 2d DCA 1996)
- Aultman v. Singletary, 710 So. 2d 1051 (Fla. 1st DCA 1998)
- Whitfield v. State, 804 So. 2d 1274 (Fla. 5th DCA 2002)
- Johnson v. State, 809 So. 2d 892 (Fla. 2d DCA 2002)
- Taylor v. State, 658 So. 2d 635 (Fla. 2d DCA 1995)
- Acosta v. Creative Grp. Invs., Inc., 790 So. 2d 518 (Fla. 3d DCA 2001)
- State v. Miraldo Chavez, 790 So. 2d 518 (Fla. 5th DCA 2001)
- Phipps v. State, 806 So. 2d 565 (Fla. 1st DCA 2002)