ROOSEVELT HOLMES, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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A motion to withdraw a plea is not cognizable under Rule 3.800, but a general sentence for multiple counts is illegal and requires vacating and resentencing on each count.
[1] A general sentence imposed for multiple counts is illegal.
[2] The remedy for an illegal general sentence is to vacate the sentence and impose separate sentences for each count, not to allow withdrawal of the plea.
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Join FLexlaw to unlock all legal intelligenceAppellant pleaded guilty to multiple charges and received a general sentence. He later violated probation and received a longer sentence. He then file…
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Appellant Roosevelt Holmes appeals the trial court’s order summarily denying his motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a).
In 1997, Appellant was charged by information with, inter alia, armed robbery, armed burglary, and aggravated battery. In 1998, pursuant to a negotiated plea, Appellant agreed to plead guilty to all counts for a sentence of three years’ state prison followed by three years’ probation. The trial court accepted the negotiated plea and appellant was sentenced pursuant to the agreed terms. However, the sentence did not assign a distinct and individual sentence for each count, but instead imposed a “general sentence” of three years’ state prison followed by three years’ probation, for all counts.1
Appellant was released from prison and in 2000, while still on probation, he committed several substantive violations of his probation, including multiple counts of *283armed robbery, kidnapping, and burglary. In October 2002, the trial court revoked his probation and sentenced him under the guidelines to 15.7 years in state prison.2
In 2012, Appellant filed a motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800, arguing that the general sentence imposed in 1998 was an illegal sentence. More to the point, Appellant contended in his motion that the proper remedy was to allow him to withdraw the 1998 plea. The trial court summarily denied the motion.
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 sentence for each of the individual counts. Id.
Appellant does not seek such a correction of the sentence.3 Instead, appellant seeks to withdraw the original plea he negotiated and entered into in 1998.4 A motion which seeks, as its remedy, the withdrawal of a negotiated plea is not cognizable under Rule 3.800 but must be brought in a timely manner pursuant to Rule 3.850. See Dominguez v. State, 98 So.3d 198 (Fla. 2d DCA 2012). Appellant’s motion cannot be treated as one seeking relief under Rule 3.850, as it is time barred and fails to allege a factual or legal basis to support a motion seeking to withdraw a plea.
The trial court correctly denied Appellant the relief sought. However, because the sentence imposed in 1998 is an illegal sentence, we reverse and remand to the trial court for the limited purpose of vacating the original general sentence and entering a separate, distinct sentence for each count to which appellant entered a plea in case no. F97-950C.5 In all other respects, the order of the trial court is affirmed.
Affirmed in part, reversed in part, and remanded with directions.
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State v. Jimenez, 173 So. 3d 1020 (Fla. 3d DCA 2015)…neral sentence” that ordered the defendant to sixty years as to Counts 1, 2, 3, and 4, and 364 days as to Counts 5, 6, and 7. The trial court properly resentenced Jimenez by entering a separate, distinct sentence for each count. See Holmes v. State, 100 So. 3d 281, 283 (Fla. 3d DCA 2012) (finding that a general sentence to cover multiple counts is an illegal sentence; Rule 3.701(d)(12), Fla. R.Crim. P., provides “[a] sentence must be imposed for each offense.”); Kissel v. State, 757 So. 2d 631, 632 (Fla. 5th…
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Gonzalez v. State, 221 So. 3d 1225 (Fla. 3d DCA 2017)…his author) has made the veiy same mistake of conflating the analysis and stating, as a principle of law, .that a defendant does not have the right to be present at a resentencing which merely involves a ministerial task. See, e.g., Holmes v. State, 100 So. 3d 281 (Fla. 3d DCA 2012); Jordan v. State, 83 So. 3d 910 (Fla. 3d DCA 2012) (aff’d but criticized in 143 So. 3d 335 (Fla. 2014)); Velez v. State, 988 So. 2d 707 (Fla. 3d DCA 2008). Although it may be implicit in those cases that the defendant’s absence fr…
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Carroll v. State, 225 So. 3d 360 (Fla. 4th DCA 2017)…t illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). Appellant is correct, and the State agrees, that the trial court erred in failing to enter separate sentencing orders for each count m his underlying cases. Holmes v. State, 100 So. 3d 281 (Fla. 3d DCA 2012); Brazley v. State, 871 So. 2d 986 (Fla. 3d DCA 2004). We reverse and remand for the trial court to correct the sentencing documents. Appellant need not be present for this ministerial act. Jordan v. State, 143 So. 3d 335, 339 (Fla…
Previewing 3 of 10 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Kipp Karson Kelly, 98 So. 3d 198 (Fla. 2d DCA 2012)
- Dominguez v. State, 98 So. 3d 198 (Fla. 2d DCA 2012)
- Brazley v. State, 871 So. 2d 986 (Fla. 3d DCA 2004)