THOMAS
v.
STATE
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A trial court must clarify or correct sentences for third-degree felonies that exceed the five-year statutory maximum when the sentencing order does not clearly explain how the sentences apply to each count.
[1] When a sentencing order for multiple third-degree felony counts imposes a total term exceeding the statutory maximum without clearly explaining how the sentence applies t…
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Join FLexlaw to unlock all legal intelligence“It is not clear from the written sentence on counts two and three how that ten year sentence applies to each third degree felony count.”
The court explaining why the sentencing order was ambiguous and required clarification or correction.
Gregory Thomas was convicted of first-degree murder and two third-degree felonies (robbery by snatching and grand theft auto). The sentencing order im…
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Third District Court of Appeal
State of Florida
Opinion filed February 28, 2018. Not final until disposition of timely filed motion for rehearing.
________________
No. 3D17-2148 Lower Tribunal No. 04-4047
________________
Gregory Thomas,
Appellant,
vs.
The State of Florida,
Appellee.
An appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Veronica A. Diaz, Judge.
Gregory Thomas, in proper person.
Pamela Jo Bondi, Attorney General, for appellee.
Before SUAREZ, LAGOA, and LINDSEY, JJ.
SUAREZ, J.
Gregory Thomas appeals the final order denying his Florida Rule of
Criminal Procedure 3.800(a) Motion for Post-Conviction Relief. We reverse and remand for further proceedings.
Thomas was convicted of first degree murder, one count of robbery by snatching, and one count of grand theft auto. Counts two and three are third degree felonies; the sentence shows that he received a ten-year sentence for those counts. He correctly notes that the maximum statutory penalty for a third degree felony is five years. §775.082(3)(d), Fla. Stat. (2007). Thomas filed a motion to correct these two sentences to reflect five years each. The trial court denied the petition for legal insufficiency. The State filed no response, and there is no sentencing transcript in the record.
In the absence of any explanatory record, the petition is sufficient to require a clarification of the written sentence. It is not clear from the written sentence on counts two and three how that ten year sentence applies to each third degree felony count. The written sentence does not explicitly state whether ten years for counts two and three are ten years per charge, or five years per charge (consecutive), or whether those sentences were enhanced in any way to result in a ten year total sentence.
On remand, the trial court must either enter a new order attaching documents that conclusively refute Thomas’s claim or must otherwise grant the appropriate relief in resentencing Defendant to five years for each third degree felony conviction, noting whether those terms are to be served concurrently or consecutively.
Reversed and remanded.