ARTHUR THOMPSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Arthur Thompson was convicted of first-degree murder, burglary with assault and battery, and robbery arising from a single criminal episode. The trial court initially imposed consecutive sentences enhanced by the habitual felony offender (HFO) designation, but deleted the HFO designation following a successful rule 3.800(a) motion based on Hale v. State. The court now reverses and remands for de novo resentencing because the trial court failed to provide justification for imposing a sentence above the guidelines for the burglary conviction after removing the HFO enhancement.
Thompson is entitled to a de novo resentencing hearing. When a trial court deletes an improper HFO designation, it must provide reasons justifying any sentence imposed above the sentencing guidelines. Because the trial court failed to provide such justification for the burglary conviction sentence, remand for de novo resentencing is necessary.
[1] Habitual felony offender sentences cannot run consecutively when the offenses occur in a single criminal episode.
[2] A claim that habitual felony offender sentences improperly ran consecutively is cognizable in a motion for postconviction relief when the single criminal episode is appar…
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Join FLexlaw to unlock all legal intelligence“HFO sentences cannot run consecutively to each other when the offenses occur in a single criminal episode”
Establishes the controlling law under Hale v. State that invalidated Thompson's consecutive HFO sentences
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Join FLexlaw to unlock all legal intelligenceThompson was convicted on July 22, 1991, of first-degree murder, burglary with assault and battery, and robbery resulting from his uninvited entry int…
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PER CURIAM.
Appellant, Arthur Thompson, was convicted by a jury, on July 22, 1991, of first-degree murder, burglary with assault and battery, and robbery, all arising from his uninvited entry into a trailer and killing of its resident. The trial court sentenced Thompson to life in prison as a habitual felony offender (HFO) with a 25-year mandatory minimum for the murder conviction, life in prison as a HFO for the burglary conviction, and 30 years in prison as a HFO for the robbery conviction. The sentences ran consecutively to each other. It was only the designation of appellant as a HFO that permitted the trial court to sentence him above the guidelines. See § 775.084(4)(e), Fla. Stat. (1989).
Appellant filed a rule 3.800(a) motion in the trial court seeking relief pursuant to Hale v. State, 630 So. 2d 521 (Fla.1993), which held that HFO sentences cannot run consecutively to each other when the offenses occur in a single criminal episode. Under State v. Callaway, 658 So. 2d 983 (Fla.1995), Hale can be applied retroactively. See also Teague v. State, 871 So. 2d 301 (Fla. 1st DCA 2004) (holding that a Hale claim is cognizable in a rule 3.800(a) motion as long as the fact that multiple convictions arose from a single criminal episode is readily apparent from the face of the record).
The trial court deleted the HFO designation from all three sentences and reduced the 30-year robbery sentence to 15 years, the statutory maximum sentence for a second-degree felony without enhancement. Otherwise, the sentences were unchanged.
Thompson appealed the changed sentence, arguing for a de novo resentencing hearing because the consecutive life sentence for the burglary conviction is still a sentence above the guidelines. See Brooks v. State, 937 So. 2d 827, 828 (Fla. 2d DCA 2006) (finding that sentencing guidelines apply to resentencing following a successful rule 3.800(a) motion, but the state has the right to seek an upward departure).
A defendant need not be present when a court simply deletes a HFO designation without otherwise changing the sentence. Catalan v. State, 911 So. 2d 203 (Fla. 3d DCA 2005).
In this case, however, when the trial court deleted the HFO designation, there was no justification for a sentence above the guidelines. Cf Dougherty v. State, 785 So. 2d 1221,1223 (Fla. 4th DCA 2001) (stating a defendant is entitled to be present at sentencing, except in “re-sentencing cases where all that is required on remand is a ministerial act of sentence correction”).
Although, a departure sentence for the burglary conviction may be justified, the trial court must give reasons for imposing a departure sentence. Because appellant’s HFO designation was improper under Hale, a de novo resentencing hearing is necessary for the court to consider whether a sentence above the guidelines is justified.
Reversed and remanded for a de novo resentencing hearing.
SHAHOOD, C.J., FARMER and KLEIN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Burgess v. State, 182 So. 3d 841 (Fla. 4th DCA 2016)…la.2014). In this case, once Appellant’s habitual violent felony offender designations were struck, the trial court was required to reconsider Appellant’s sentences under the sentencing laws in effect at the time of his offenses. Thompson v. State, 987 So. 2d 727, 728 (Fla. 4th DCA 2008); Lewis v. State, 764 So. 2d 874 (Fla. 4th DCA 2000). A resentencing at which the trial judge has judicial discretion is not a ministerial act, and thus Appellant’s presence at resentencing here is required. Jordan, 143 So. 3…
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Bell v. State, 219 So. 3d 221 (Fla. 1st DCA 2017)…ences for these, counts. See Jordan v. State, 143 So. 3d 335, 339-40 (Fla. 2014). (concluding that a correction to the defendant’s sentence is not a ministerial act where the trial court has discretion in imposing a new sentence); Thompson v. State, 987 So. 2d 727, 729 (Fla. 4th DCA 2008) (concluding that while a' defendant’s presence was not normally required for the striking of an HFO designation, in this case, “when the trial court deleted the HFO designation, there was no justification for a sentence abov…
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Henion v. State, 247 So. 3d 537 (Fla. 4th DCA 2018)…ng unless the record conclusively shows that the same sentence would have been imposed using a correct scoresheet . . . .”). Appellant need not be present for the purposes of correcting the scoresheet on remand. See, e.g., Thompson v. State, 987 So. 2d 727, 728- 29 (Fla. 4th DCA 2008) (holding that a defendant need not be present when a court simply corrects a sentencing designation in paperwork without otherwise changing the actual sentence imposed). GERBER, C.J., and DAMOORGIAN, J., concur.…
Previewing 3 of 4 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)
- State v. Callaway, 658 So. 2d 983 (Fla. 1995)
- Dougherty v. State, 785 So. 2d 1221 (Fla. 4th DCA 2001)
- Catalan v. State, 911 So. 2d 203 (Fla. 3d DCA 2005)
- Errol D. Brooks v. State, 937 So. 2d 827 (Fla. 2d DCA 2006)
- Teague v. State, 871 So. 2d 301 (Fla. 1st DCA 2004)