JOHN P. MCNAMARA, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The court held that sentences must be served consecutively unless affirmatively designated as concurrent by the sentencing court, as the statute prevails over the conflicting rule.
Petitions for rehearing were filed by both the appellant and the appellee. The appellee's petition pointed to a conflict between a rule of criminal pr…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Collateral Attack On Sentence cases and more on FLexlaw
NATHAN, Judge.
John P. McNamara was convicted of grand larceny on May 21, 1970, in Dade County, and sentenced to one year in the Dade County Jail. Subsequently this sentence was modified to one year in the State Penitentiary. This modified order is not on appeal. He appeals from the trial court’s summarily denying his relief under Rule 3.850 RCrP. On February 8, 1972, he was adjudicated guilty of assault with intent to commit grand larceny in Broward County, Florida, and sentenced to 20 years in the State Penitentiary where he is presently incarcerated.
Both sentencing orders are silent as to whether the 20 year sentence is to run concurrent with, or consecutive to the one year sentence. McNamara contends that his sentences run concurrently and that this should have been corrected by the court by his motion for post conviction relief under the rule. McNamara does not allege, nor is there any error in the sentences imposed by the trial courts. Rule 3.722, RCrP provides that sentences imposed without designation that they be served consecutively, shall then be served concurrently. McNamara, therefore, has no remedy in the trial court or this court by means of Rule 3.850, RCrP. Relief from improper judgment or imposition of sentence or correction of sentence is available only when the judgment was rendered without jurisdiction or the sentence imposed was not authorized by law or was otherwise open to collateral attack; or the court, in imposing judgment and sentence, infringed or denied defendant’s constitutional rights. Crusoe v. State, Fla.App. 1966, 183 So. 2d 600. When McNamara is, or is about to be, detained for a longer period than that provided by law, he may seek his appropriate remedy at that time.
Affirmed.
PER CURIAM.
Petitions for rehearing have been filed in this cause by John P. McNamara, the appellant, and by the State of Florida, the appellee. Both petitions are denied.
In the petition for rehearing filed by the State, our attention is directed to Benyard v. Wainwright, Fla.1975, 322 So. 2d 473, filed October 29, 1975, which recognizes the conflict between Rule 3.722, RCrP, and § 921.16, Fla.Stat. Rule 3.722, RCrP, directs that sentences are concurrent unless affirmatively designated as consecutive by the sentencing court, and § 921.16, Fla.Stat., provides:
“When sentences to be concurrent and when consecutive. . . . Sentences of imprisonment for offenses not charged in the same indictment, information, or affidavit shall be served consecutively unless the court directs that two or more of the sentences be served concurrently.”
In the opinion of the Florida Supreme Court, “ . . . the statute must prevail over our rule because the subject is substantive law.”
Therefore, we modify our opinion to reflect that pursuant to § 921.16, Fla.Stat., the sentences under review shall be served consecutively.
It is so ordered.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Bruce v. State, 679 So. 2d 45 (Fla. 3d DCA 1996)…6(1), Fla. Stat. (1993); see also Benyard v. Wainwright, 322 So. 2d 473, 475 (Fla.1975); State v. Hull, 545 So. 2d 510 (Fla. 3d DCA), cause dismissed, 549 So. 2d 1014 (Fla.1989); Snell v. State, 438 So. 2d 1038 (Fla. 2d DCA 1983); McNamara v. State, 324 So. 2d 702 (Fla. 3d DCA 1975), cert. denied, 337 So. 2d 809 (Fla.1976). Section 921.16(1) states as follows: (1) A defendant convicted of two or more offenses charged in the same indictment, information, or affidavit or in consolidated indictments, informatio…
-
Skinner v. State, 366 So. 2d 486 (Fla. 3d DCA 1979)…e may be vacated upon motion by a defendant when “in excess of the maximum authorized by law.” Moreover, it has long been held that a sentence not authorized by law is always subject to collateral attack under Fla.R.Crim.P. 3.850. McNamara v. State, 324 So. 2d 702, 703 (Fla.3d DCA 1975); Crusoe v. State, 183 So. 2d 600, 604 (Fla.2d DCA 1966). We further reject the state’s contention that the issue herein is rendered irrelevant or moot because the defendant was also sentenced to life imprisonment on a burglar…
Authorities Cited
- Benyard v. Louie L. Wainwright, 322 So. 2d 473 (Fla. 1975)
- Crusoe v. State, 183 So. 2d 600 (Fla. 2d DCA 1966)