GERALD A. COLON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 5th DCA | 2005-07-01
No. 5D04-1803
PETERSON and MONACO, JJ., concur.
905 So. 2d 1000 Florida District Court of Appeal, Fifth District (2005) Positive Treatment
Cited by 6 cases

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Holding

The court held that sentences are presumed concurrent unless the trial court explicitly states they are consecutive, and a court cannot increase a sentence after it has been pronounced.


Headnotes

[1] Sentences are presumed to run concurrently unless the trial court specifically states that they are to run consecutively.

[2] A trial court cannot increase a legal and unambiguous sentence after the sentencing hearing has concluded, even if the orally pronounced sentence was based on a mistake.

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Facts & Procedural History

Gerald A. Colon was convicted of multiple offenses and received a life sentence plus additional terms. The trial court's oral pronouncements and writt…

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Opinion of the Court
SHARP, W„ J.

SHARP, W„ J.

Gerald A. Colon (“Colon”) has filed an appeal of his sentences after a jury found him guilty of, Count I — sexual battery with a deadly weapon or physical force1; Count II — assault2; Count III — aggravated battery causing great bodily harm with a weapon3; Count IV — false imprisonment with a weapon4; and Count V — battery upon a firefighter.5 Colon’s offenses were committed during a one day crime spree on one victim, except for Count V, which was committed on a firefighter at a later time, on the same day.6 The judge sentenced him to a term of life, as a Prison Releasee Reoffender on Count I; time served on Count II, 25 years on Count III; 15 years concurrent with Count I on Count IV; and five years on Count V.

At the sentencing hearing, the court specifically said it was imposing Count IV concurrently with Count I. The court also stated that Colon’s sentences were “life plus twenty-five plus five.” The prosecutor asked the court whether the sentences were to run consecutive to one another, and the court replied “I did not say anything.” The judge did not further clarify the sentence. The written sentences are silent as to whether they are to run concurrently or consecutively, except for Count IV, which states it is to run concurrent with the sentence in Count I.

Colon filed a motion to correct or clarify his sentences pursuant to Florida Rule of Criminal Procedure 8.800(b)(2), arguing that if the sentences are consecutive, in this case they are illegal because the court did not specifically express its intent that the sentences were to run consecutively. The motion was denied.

Section 921.16(1)7 provides that concurrent sentences must be imposed unless the trial court specifically states that the sentences are consecutive. See Hall v. Mayo, 88 So. 2d 845 (Fla.1955); Stevenson v. State, 659 So. 2d 432 (Fla. 5th DCA 1995); Macon v. State, 596 So. 2d 769 (Fla. 5th DCA 1992). In this case, the trial court did not impose consecutive sentences, even after the state called its attention to the issue, by asking the court if it had done so. The response was “I did not say anything.”

At the hearing on the motion to correct the sentences, the court said it had intended to impose consecutive sentences. In fact, the court believed that,

the statute said that if you don’t say anything, it is consecutive. That in or der for it to be concurrent, you have to specifically say it is concurrent.

However, section 921.16 provides the opposite. Sentences are concurrent unless the court states that they are consecutive.

The sentence originally pronounced is the sentence that must be imposed. Comtois v. State, 891 So. 2d 1130 (Fla. 5th DCA 2005). As we explained in Comtois:

The “pronouncement” becomes final when the sentencing hearing ends. See Farber v. State, 409 So. 2d 71, 73 (Fla. 3d DCA 1982). See also Hickman v. State, 606 So. 2d 435, 437 (Fla. 2d DCA 1992). While Rule 3.800(a), Florida Rules of Criminal Procedure, authorizes a sentencing court to correct an illegal sentence, the rule does not permit the court to increase a legal and unambiguous sentence after the pronouncement becomes final, even if the orally pronounced sentence was based on mistake. See Farber. (emphasis added)

See also Ashley v. State, 850 So. 2d 1265, 1269 (Fla.2003)(jeopardy attaches at conclusion of sentencing hearing at which sentencing is pronounced); Armstrong v. State, 896 So. 2d 866 (Fla. 5th DCA 2005); Rivera v. State, 862 So. 2d 55 (Fla. 2d DCA 2003).

Therefore, Counts II, IV and V are statutorily required to be concurrent. Macon. Section 921.16 is inclusive, and it places the burden on the trial judge to sentence with certainty. Hall.

We reverse and remand to the trial court to provide that the sentences shall be served concurrently.

REVERSED AND REMANDED.

PETERSON and MONACO, JJ., concur. . Section 794.011(3), a life felony.

. Section 784.011, a misdemeanor. . Sections 775.087(1) and 784.045(l)(a)(l), a first degree felony.

. Sections 775.087(1) and 787.02, a second degree felony.

. Sections 784.07(2)(b) and 784.03, a third degree felony.

. The state filed that it intended to seek enhanced punishment as a prison releasee reof-fender. .Section 921.16(1) provides:

a defendant convicted of two or more offenses charged in the same indictment, 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. Any sentence for sexual battery as defined in chapter 794 ... must be imposed consecutively to any other sentence for sexual battery ... which arose out of a separate criminal episode or transaction, (emphasis added)

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Citator

Cited By

  • Shepard v. State, 940 So. 2d 545 (Fla. 5th DCA 2006)
    …Johnson v. State, 608 So. 2d 138 (Fla. 4th DCA 1992); Farber v. State, 409 So. 2d 71 (Fla. 3d DCA 1982). However, as previously stated by this court, the trial court’s pronouncement becomes final when the sentencing hearing ends. See Colon v. State, 905 So. 2d 1000 (Fla. 5th DCA 2005); Comtois. Colon and Comtois are consistent with our supreme court’s decision in Troupe v. Rowe, 283 So. 2d 857 (Fla.1973). In Troupe, the trial court had accepted the defendant’s plea, imposed sentence, and concluded the sentenci…
  • Tywan Obara v. State, 958 So. 2d 1019 (Fla. 5th DCA 2007)
    …t found that jeopardy had attached, notwithstanding the short time period between the conclusion of the initial sentencing proceeding and the trial court’s decision to reject the previously accepted plea. Id. at 860. Our decisions in Colon v. State, 905 So. 2d 1000 (Fla. 5th DCA 2005), and Comtois v. State, 891 So. 2d 1130 (Fla. 5th DCA 2005), are consistent with Troupe,3 Mr. Obara is also entitled to the benefit of his originally imposed sentence because his conduct, while unlawful, did not violate the expre…
  • Johnson v. State, 973 So. 2d 1192 (Fla. 2d DCA 2008)
    …nouncement’ becomes final when the sentencing hearing ends.” (citing Farber v. State, 409 So. 2d 71, 73 (Fla. 3d DCA 1982))). Section 921.16 places the burden on the trial court “to sentence with certainty” in the oral pronouncement. Colon v. State, 905 So. 2d 1000, 1002 (Fla. 5th DCA 2005); see also Ashley v. State, 850 So. 2d 1265, 1268 (Fla. 2003) (“[A] court’s oral pronouncement of sentence controls over the written document.”). The oral pronouncement of Mr. Johnson’s sentences was neither ambiguous nor u…

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