MAX L. BRAZLEY, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Brazley pleaded guilty to second degree murder and other charges, receiving a 40-year general sentence applied to all six counts. The appellate court held that general sentences violate Florida law and require vacation and remand for individual sentencing on each distinct offense.
The entire general sentence must be vacated and the case must be remanded for resentencing with distinct, individual sentences imposed for each of the six felony convictions, not merely partial correction of sentences exceeding statutory maximums.
[1] A general sentence imposed for multiple convictions is improper.
[2] When a general sentence is found to be illegal, the entire sentence must be vacated and the defendant must be resentenced on each individual conviction.
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Join FLexlaw to unlock all legal intelligence“general sentences for multiple convictions are improper. Fla. R.Crim. P. 3.701(d)(2).”
Establishes the fundamental legal principle that general sentences violate Florida criminal procedure rules
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Join FLexlaw to unlock all legal intelligenceIn 1996, Brazley was charged with first degree murder, armed robbery, attempted armed robbery, attempted armed burglary, unlawful possession of a fire…
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FLETCHER, Judge.
In 1996, Max Lee Brazley was charged with first degree murder (count I), armed robbery (count II), attempted armed robbery (count III), attempted armed burglary (count IV), unlawful possession of a firearm while engaged in a criminal offense (count V), and possession of a firearm by a convicted felon (count VI). Braz-ley agreed to plea guilty to a reduced charge of second degree murder for count I1 in exchange for a sentence of forty years in state prison and dismissal of other charges pending against him in a separate criminal case. The trial court imposed a general sentence of 40 years concurrent, covering all six counts.
Brazley filed a motion to correct his sentence alleging that was an illegal general sentence. The state conceded error. The trial court then corrected the sentence on three of the six convictions as they were well over the statutory máximums for those offenses by virtue of across-the-board application of 40 years to all counts. Brazley now appeals from the trial court’s order of August 15, 2003, correcting his illegal general sentence as to counts III, IV, and V. We reverse and remand for resentencing.
The state correctly concedes that general sentences for multiple convictions are improper. Fla. R.Crim. P. 3.701(d)(2). The trial court merely adjusted downward those sentences that were beyond the statutory maximum for the offense (counts III, IV, and V), and failed to discuss the remaining counts, which were within the statutory maximum (counts I, II, and VI). The sentences for all six convictions now appear to be within the statutory máxi-mums for each offense.
However, the trial court initially erred in not vacating the entire general sentence, which encompassed all six counts. The trial court then should have imposed a distinct sentence for each convicted offense, including those counts for which the sentences were not over the statutory maximum. See Scott v. State, 747 So. 2d 1018 (Fla. 3d DCA 1999)(defendant entitled to vacation and remand of general sentence so that the sentencing order reflects a separate, legal sentence for each offense therein); Hooks v. State, 613 So. 2d 607 (Fla. 3d DCA 1993)(same); Lewis v. State, 567 So. 2d 50 (Fla. 5th DCA 1990)(same).
Brazley has challenged only the sentences imposed and has not moved to withdraw his plea. We therefore reverse the order granting partial relief from Brazley’s illegal general sentence, vacate the entire sentence and remand to the trial court for resentencing, with instructions to enter a distinct and individual sentence for each felony conviction.2 Brazley does not need to be present at resentencing. Awad v. State, 364 So. 2d 516 (Fla. 4th DCA 1978)(at resentencing necessitated by the trial court’s error in imposing a general sentence, it is not necessary that the defendant be present unless the trial court requires it).
. Counts II through VI remained as charged.
. Notwithstanding that the general sentence has already been “corrected” in part below.
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Holmes v. State, 100 So. 3d 281 (Fla. 3d DCA 2012)…Appellant is correct (and the State acknowledges) that a trial court may not impose a single general sentence to cover multiple counts. See Fla. R.Crim. P. 8.701(d)(12) (providing, “[a] sentence must be imposed for each offense”); Brazley v. State, 871 So. 2d 986 (Fla. 3d DCA 2004) (holding a general sentence for multiple convictions is prohibited). However, the remedy for such an error is not the withdrawal of the underlying plea, but a vacation of the general sentence and entry of a separate, distinct sent…
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Gonzalez v. State, 879 So. 2d 1261 (Fla. 3d DCA 2004)…sel claims in a post-conviction relief motion. We reverse the sentence, however, and remand for a new sentencing proceeding. The general sentence imposed is error. Defendant must be sentenced separately for counts one through four. Brazley v. State, 871 So. 2d 986 (Fla. 3d DCA 2004). We also reverse the imposition of discretionary court costs. The record demonstrates that the court did not orally announce the imposition of costs, nor did it consider defendant’s financial resources in its decision to assess co…
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Barger v. State, 923 So. 2d 597 (Fla. 5th DCA 2006)…on in the 1995 should be reversed, with the case remanded to the trial court for re-sentencing (on the 1995 charges only) consistent with the trial court’s May 12, 2005 order. Barger need not be present for the re-sentencing. E.g., Brazley v. State, 871 So. 2d 986 (Fla. 3d DCA 2004). In summary, we affirm the judgments and sentences entered in the 2001 case. With respect to the 1995 case, the sentences originally imposed on April 5, 2004 are reversed, and the re-sentencing orders entered on May 12, 2005, are…
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Walker v. Reecy Tindall, 567 So. 2d 50 (Fla. 2d DCA 1990)
- Lewis v. State, 567 So. 2d 50 (Fla. 5th DCA 1990)
- Sieffe Joe Awad v. State, 364 So. 2d 516 (Fla. 4th DCA 1978)
- O'Connor v. Inman, 613 So. 2d 607 (Fla. 3d DCA 1993)
- Scott v. State, 747 So. 2d 1018 (Fla. 3d DCA 1999)