IN THE SUPREME COURT OF FLORIDA

CASE NO. SC12-854 . 3DCA CASE NO. 3D11-2385

TYRONE JORDAN,

Petitioner,

-vs-

THE STATE OF FLORIDA,

Respondent.

APPEAL FROMTHE THIRD DISTRICT COURT OF APPEAL OF FLORIDA

RESPONDENT'S BRIEF ON THE MERITS

PAMELA JO BONDIAttorney GeneralTallahassee, Florida

RICHARD L. POLINMiami Bureau ChiefFlorida Bar No. 0230987

JAY E. SILVERAssistant Attorney GeneralFlorida Bar Number 0353050Office of the Attorney GeneralDepartment of Legal Affairs444 Brickell Ave., Suite 950Miami, Florida 33131(305) 377-5441Primary: CrimAppMIA@myfloridalegal.ccmSecondary: jay.silver@myfloridalegal.com

TABLEOFCONTENTS

TABLE OF AUTHORITIES ......................................................................... ...... iii-v

INTRODUCTION ......................................................................................... ...........1

STATEMENT OF THE CASE AND FACTS .............................................. ....... 2-3

SUMMARY OF THE ARGUMENT.......................................................................3

ARGUMENT......................................................................................................3-22

THE THIRD DISTRICT COURT OF APPEAL CORRECTLYDETERMINED THAT THE RATIONALE SET FORTH ]NFRIZZELL V. STA TE, 238 So. 2d 67 (Fla. 1970) RELATING TOTHE CONCURRENT SENTENCE DOCTRINE IS NO LONGE RVALID AFTER THE ABOLISHMENT OF THE PAROLE SYSTEMIN FAVOR OF THE SENTENCING GUIDELINES.

CONCLUSION........................................................................................................23

CERTIFICATE OF SERVICE ................................................................................24

CERTIFICATE OF COMPLIANCE WITH TYPE AND FONT...........................24

11

TABLE OF AUTHORITIES

Florida Cases

Acosta v. State, 46 So.3d 1179 (Fla. 2d DCA 2010).................................... ...........8

Brown v. State, 954 So. 2d 1177 (Fla. 3d DCA 2007).................................. ...........7

Davis v. State, 642 So. 2d 136 (Fla. 3d DCA 1994)...................................... ...........6

De La Rosa v. State, 38 So. 3d 238 (Fla. 3d DCA 2010).............................. ...........7

Dolan v. State, 618 So.2d 271 (Fla. 2d DCA 1993).......................................... 15-17

Frizzell v. State, 238 So. 2d 67 (Fla. 1970)....................................ii, 3, 10-11, 12-13

Frost v. State, 769 So.2d 443 (Fla. 1st DCA 2000)...................................................9

Heggs v. State, 759 So. 2d 620 (Fla. 2000).............................................................15

Hutchinson v. State, 979 So. 2d 377 (Fla. 4th DCA 2008)................................. 18-19

Jordan v. State, 83 So. 3d 910 (Fla. 3d DCA 2012)........................................3, 4, 10

Jordan v. State, Slip Copy, 2012 WL 4464556 (Fla. 2012)(Table)..........................3

Leonard v. State, 760 So. 2d 114 (Fla. 2000)..........................................................17

Lewis v. State, 625 So. 2d 102 (Fla. 18' DCA 1993)....................................... ........15

Manuel v. State, 48 So. 3d 94 (Fla. 2d DCA 2010)........................................ ..........5

McBride v. State, 695 So. 2d 405 (Fla. 5th DCA 1997).................................. ..........9

McGough v. State, 876 So.2d 26 (Fla. 1®t DCA 2004)................................... ..........8

Moore v. State, 882 So. 2d 977 (Fla. 2004).................................................... ........20

Mulligan v. State, 688 So. 2d 984 (Fla. 2d DCA 1997)................................ ..........9

111

Mullins v. State, 997 So. 2d 443 (Fla. 3d DCA 2008)................................... ....... 7-8

Nettles v. State, 850 So. 2d 487 (Fla. 2003) .................................................. ... 19-20

Orta v. State, 919 So. 2d 602 (Fla. 3d DCA 2006) ...................................................7

Robbinson v. State, 784 So. 2d 1246 (Fla. 3d DCA 2001)............................ ...........6

Sampson v. State, 798 So. 2d 824 (Fla. 3d DCA 2001)................................. ...........6

State v. Padron, 571 So. 2d 102 (Fla. 3d DCA 1990)................................... ...........6

State v. Scott, 439 So.2d 219 (Fla. 1983)....................................................... ...........7

Tal-Mason v. State, 700 So. 2d 453 (Fla. 4* DCA 1997) (review denied

Tal-Mason v. Satz, 624 So.2d 269 (Fla. 1993)........................................l... 14-15

Trapp v. State, 760 So. 2d 924, 928 (Fla. 2000)......................................................15

Velez v. State, 988 So. 2d 707 (Fla. 3d DCA 2008).................................................9

Williams v. State, 697 So.2d 584 (Fla. 4th DCA 1997).............................................9

Florida Rules of Criminal Procedure

3.800(a)..................................................................................................................2,6

Florida Statutes

§ 775.084, Fla. Stat..............................................................................................5, 17

§ 775.084(4), Fla. Stat. ................................................................................... ..........2

§ 921.001(4)(a), Fla. Stat. (1983)................................................................... ........19

§ 921.002, Fla. Stat.................................................................................................19

§ 944.27(1), Fla. Stat. ..................................................................................... ........13

1V

§ 944.275(3)(a), Fla. Stat................................................................................... 13-14

§ 947.146(3)(g), Fla. Stat (1993).............................................................................17

§ 947.146(4)(g), Fla. Stat (1992 Supp.). .................................................................17

Federal Cases

Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707 (1969) ..... 11-12

Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968)...............11, 12

Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1912, 20 L.Ed.2d 917 (1968)........11, 12

INTRODUCTION

Petitioner, Tyrone Jordan, was the defendant in the trial court and the

Petitioner in the District Court of Appeal of Florida, Third District. Resaondent,

the State of Florida, was the prosecution in the trial court and the Respondent in

the District Court of Appeal. The parties shall be referred to as they stan in this

Court. In this brief, the symbol "R." will reference the record on appeal filed by

Petitioner in case number 3D11-2385 as they were considered by the Third District

Court of Appeal.

STATEMENT OF THE CASE AND FACTS

On June 10, 1994, Appellant was convicted of one count of str6ng arm

robbery, a second degree felony and one count of burglary with an assault battery,

a first degree felony punishable by life. The judge, finding that the dëfendant

qualified as a habitual violent offender pursuant to s. 775.084(4) s5ntenced

Appellant to life with a fifteen year mandatory minimum on both counts. þn June

30, 2011, Appellant filed a pro se motion to correct illegal sentence pursu$nt to R.

3.800(a) F. R. Crim. P. requesting a de novo resentencing on the basis tliat a life

sentence was an impermissible sentence on the strong arm robberf count.

Petitioner did not challenge any aspect of the burglary conviction or senten e.

On August 30, 2011, nunc pro tunc to August 5, 2011, the court granted

Appellant's motion without a hearing, vacating Appellant's sentence and re-

sentencing him on the strong arm robbery count as a habitual violent offender to

thirty years with a ten year minimum mandatory pursuant to s. 775.084(4) As the

life sentence on the burglary with assault/battery charge remained unchanged, the

judge found that there was no need to hold a sentencing hearing on the strbng arm

robbery.

On September 14, 2011, Petitioner filed an appeal claiming that the Judge

erred in resentencing Petitioner without a hearing and with neither he i nor his

attorney present. In a written opinion, the Third District Court of Appeal Šffirmed

2

Petitioner's judgment and convictions. Jordan v. State, 83 So. 3d 910 (Fla. 3d

DCA 2012). Upon Appellant's Motion, the Third District Court of Appeal

amended their opinion to certify the following question to this Court:

WHETHER THE CONCURRENT SENTENCE DOCTRINE SBTFORTH IN FRIZZELL V. STA TE, 238 So. 2d 67 (Fla. 197p)REMAINS VALID AFTER ABOLISHMENT OF THE PAROI1ESYSTEM IN FAVOR OF SENTENCING GUIDELINES.

On September 25, 2012, this Court accepted jurisdiction. Jordan |v. State,

Slip Copy, 2012 WL 4464556 (Fla. 2012)(Table).

SUMMARY OF THE ARGUMENT

The Third District Court of Appeal did not err in finding that the fationale

for the abrogation of the concurrent sentencing doctrine under Frizzell v. Sfate, 238

So. 2d 67 (Fla. 1970) no longer exists as Florida has since abolished the parole

system in favor of the sentencing guidelines. While the rationale underlying the

Third District Court of Appeal's decision in this case was correct, ultimately it is

academic as the "resentencing" here was a ministerial act.

ARGUMENT

THE THIRD DISTRICT COURT OF APPEAL CORRECTI]YDETERMINED THAT THE RATIONALE SET FORTH ÍNFRIZZELL V. STATE, 238 So. 2d 67 (Fla. 1970) RELATING TOTHE CONCURRENT SENTENCE DOCTRINE IS NDLONGER VALID AFTER THE ABOLISHMENT OF TIlEPAROLE SYSTEM IN FAVOR OF THE SENTENCINGGUIDELINES.

3

a. Sentence Correction was Ministerial in Nature and did not Re uire De

Novo Resentencing

In the instant case, the reduction of the sentence on the strong arm robbery

count from life with a fifteen year mandatory minimum as a habitual viole t felony

offender to thirty years with a ten year mandatory minimum as a habitua violent

felony offender was ministerial in nature and did not require de novo rese tencing

or the presence of the defendant, and the Third District therefore properly ffirmed

the trial court's order. Indeed, the Third District's opinion in this e se was

independently based on the ministerial nature of the sentence, regardless of the

applicability of the concurrent sentence doctrine, as they explained:

Generally, a defendant is constitutionally entitled to be present at liisor her resentencing, unless it is only a "ministerial act" to correct aprior sentence. Orta v. State, 919 So.2d 602, 604 (Fla. 3d DCA 2006).This Court previously has held that resentencing for a concurrehtoffense, when the defendant is serving a sentence of equal or greathrlength on another conviction, is a ministerial act. Velez v. State, 9$8So.2d 707 (Fla. 3d DCA 2008). ***.

Jordan v. State, 83 So. 3d 910, 911 (Fla. 3d DCA 2012)

Accordingly, it may not even be necessary for this Honorable Court to reach

the concurrent sentencing doctrine issue in this case, as the resentencing liere was

ministerial in nature - something more in the nature of the striking of a niinimum

mandatory or the reduction of a sentence to a lower maximum - rather than a

plenary resentencing. Petitioner is seeking a de novo resentencing in the aftermath

of a correction to the habitual violent felony offender (hereinafter "HVFO")

sentence he had received. However, as, the corrective action taken by the trial

court with regard to the sentence was ministerial in nature and did not re uire any

further action as to either the HVFO designation or the other sentence entirely,

which was not even challenged, he is not entitled to a de novo reseritencing.

Moreover, as the wholly unchallenged sentence was a concurrent true life sentence

as the burglary sentence life without the possibility of parole, the correcti¶e action

to the robbery sentence was purely academic, with no practical significancë.

It is clear that a defendant has the right to be present at all fundamental

stages of a criminal proceeding. A resentencing is a fundamental stage utiless that

resentencing is purely ministerial. In this case, Petitioner originally receijved two

concurrent life sentences. One of the life sentences as an HVFO was not at issue in

the instant proceeding. That life sentence was for an offense arising under the

sentencing guidelines, for offenses committed in 1994. Life sentences under the

guidelines were true life sentences; there was no possibility of earning early release

through gain time; and such offenses were not eligible for parole, which was

eliminated with the creating of the sentencing guidelines in the mid-1980's. See

Manuel v. State, 48 So. 3d 94 (Fla. 2d DCA 2010).

While section 775.084, Fla. Stat. (1993) makes clear that the decision

whether or not to impose a penalty under the habitualization statute is

5

discretionary, see State v. Padron, 571 So. 2d 102 (Fla. 3d DCA 1990), Sampson v.

State, 798 So. 2d 824 (Fla. 3d DCA 2001), Robbinson v. State, 784 So. 2d 1246

(Fla. 3d DCA 2001), Davis v. State, 642 So. 2d 136 (Fla. 3d DCA 1994), the

determination of whether to resentence as an HVFO was not at issue with regard to

the "resentencing" in this case. Petitioner had originally been sentenced as an

HVFO on both counts - robbery and burglary. The motion to correct sentence had

been granted, not on the basis of any argument that the defendant did not qualify as

an HVFO, but that the sentence imposed for the strong arm robbery, a second

degree felony, exceeded the permissible maximum under the HVFO sentence. The

only thing that was at issue was the maximum sentence applicable under the

HVFO. Not only did the court intend, from the outset, to impose the maximum

permissible sentence on each count for an HVFO, but, the burglary sentence was

unaffected by the 3.800 motion, and that was a permissible life sentence. The

strong arm robbery, in the process of being reduced from life to the maximum of

30 years, was essentially a meaningless act, since it was concurrent with the greater

remaining sentence of life. The HVFO designation, on "resentencing" was a

given, since that had originally been imposed and was not challenged in any

capacity by the 3.800 motion or by any relief granted as a result of the 3.800

motion. Thus, the corrected sentence was a true ministerial act not requiring a de

novo resentencing.

6

The State acknowledges that this Court explained in State v. Scott, 439 So.2d

219, 220 (Fla. 1983) that "once the court has determined that the sentence was

indeed illegal and the prisoner is entitled to a modification of the original sentence

or the imposition of a new sentence, the full panoply of due process considerations

attach." The Third District Court of Appeal has followed this requirement in cases

such as Orta v. State, 919 So. 2d 602 (Fla. 3d DCA 2006) wherein that court

found:

A defendant is constitutionally entitled to be present at allfundamental stages of a criminal proceeding, including sentencing.Fla. R.Crim. P. 3.180(a)(9); Dougherty v. State, 785 So.2d 1221, 1223(Fla. 4th DCA 2001). Moreover, any error in denying a defendant heror his right to be present at a critical stage of any proceeding isfundamental error. Dougherty, 785 So.2d at 1223. Florida has,however, recognized an exception in resentencing cases where onlythe "ministerial act" of sentence correction is required. Frost v. State,769 So.2d 443, 444 (Fla. 1st DCA 2000); Williams v. State, 697 So.2d584 (Fla. 4th DCA 1997)(correcting a discrepancy between the oralpronouncement and the written sentence).

Orta v. State, 919 So. 2d 602 (Fla. 3d DCA 2006). See also Brown v. State, 954

So. 2d 1177 (Fla. 3d DCA 2007), De La Rosa v. State, 38 So. 3d 238 (Fla. 3d DCA

2010).

The Third District explained in Mullins v. State, 997 So. 2d 443 (Fla. 3d

DCA 2008) that:

A defendant will receive a new sentencing hearing if the resentencinginvolves additional consideration or sentencing discretion, not if theact to be done is ministerial in nature, such as striking an improperportion of the sentence. Griffin v. State, 517 So.2d 669 (Fla.1987);

7

McGough v. State, 876 So.2d 26 (Fla. 1st DCA 2004). Althoughstriking the violent career criminal designation is a ministerial act,here the entire fifteen year sentence must be vacated, and Mullinsmust be resentenced with an entire new written sentence. See Tumblinv. State, 965 So.2d 354 (Fla. 4th DCA 2007); State v. Arduengo, 609So.2d 651 (Fla. 2d DCA 1992). This new written sentence willinvolve sentencing discretion, and as such, requires a new hearing.Additionally:

[T]he pronouncement of sentence upon a criminaldefendant is a critical stage of the proceedings to whichall due process guarantees attach, whether the sentence isthe immediate result of adjudication of guilt or, as here,the sentence is the result of an order directing the trialcourt to resentence the defendant.

Griffin, 517 So.2d at 670. Consequently, the defendant has the right tobe present and have assistance of counsel at the new sentencinghearing. Id. Tumblin, 965 So.2d. at 354. Mullins' new sentencinghearing is a critical stage of the proceedings, and due process requireshe be present and assisted by counsel.

Mullins v. State, 997 So. 2d 443 (Fla. 3d DCA 2008) See also Acosta v.

State, 46 So.3d 1179, 1180 (Fla. 2d DCA 2010) (citing Mullins, explaining

"[h]owever, where the resentencing is within the trial court's discretion, the

resentencing is not purely ministerial, and a defendant is entitled to be present at

the hearing.")

The First District, in McGough v. State, 876 So.2d 26, 26-27 (Fla. l®' DCA

2004), finding that the Appellant in that case had the right to be present or

represented by counsel, gave the examples of ministerial acts being "* * * entering

a written sentence where none exists, as in Williams v. State, 697 So.2d 584 (Fla.

4th DCA 1997), or changing the written sentence to conform with the oral

8

pronouncement of sentence, as in Frost v. State, 769 So.2d 443 (Fla. 1st DCA

2000)." In fact all five district courts of appeal have found that purely ministerial

acts do not require de novo resentencing hearings with the defendant beingipresent.

See Frost v. State, 769 So.2d 443, 444 (Fla. 1st DCA 2000)(remand |to enter

written sentence to conforming with oral pronouncement is a ministerial act):

Mulligan v. State, 688 So. 2d 984 (Fla. 2d DCA 1997)(remand for a written order

imposing adult sanctions on a juvenile defendant was a ministerial act); Velez v.

State, 988 So. 2d 707, 708 (Fla. 3d DCA 2008)(defendant did not need to be

present for re-sentencing since "...count one was concurrent with count itwo, on

which the defendant is serving a life sentence. The controlling sentence is the life

sentence. The reduction of the sentence on count one to the legal maximuin, thirty

years, was a ministerial act"); Williams v. State, 697 So.2d 584 (Fla. 4th DCA

1997)(remand to enter a written order is a ministerial act); McBride v. State, 695

So. 2d 405 (Fla. 5th DCA 1997)(remand for a written order imposing adult

sanctions on a juvenile defendant was a ministerial act).

b. Concurrent Sentence Doctrine

In addition to the affirmance of the trial court being proper due to the

ministerial nature of the sentencing correction, the same result would ensue from a

consideration of the concurrent sentence doctrine. The State recognizes that the

concurrent sentence doctrine, which provided that appellate courts need not

9

address challenges to a sentence when concurrent sentences of equal or greater

length have not been challenged, was abrogated by this Court in 1970 in Frizzell v.

State, 238 So. 2d 67 (Fla. 1970). The reasons for the abrogation in Frizzell were

the possibility of obtaining more favorable consideration for parole. or the

possibility of being permitted to serve as a prison trusty. Parole, however, is no

longer in existence since the advent of the sentencing guidelines in the 1980's; and

there are no apparent statutes or administrative rules or regulations which correlate

the length of a sentence to eligibility for positions such as that of a trusty. The

State respectfully submits that the reasons why this Court abrogated the doctrine in

Frizzell are no longer valid, and that the concurrent sentence doctrine should once

again be effective.

As explained by the Third District's opinion in this case:

*** We recognize that the Florida Supreme Court abrogated thisconcurrent sentence doctrine in 1970. Frizzell v. State, 238 So.2d 67(Fla.1970). There the court concluded that concurrent resentencingwas a crucial stage requiring the defendant's presence because of thepossibility of obtaining more favorable consideration for parole.Florida has since abolished the parole system in favor of sentencingguidelines. Thus, as this Court implicitly understood in Velez, themain reason for abrogation of the doctrine no longer exists.

Jordan v. State, 83 So. 3d 910, 911 (Fla. 3d DCA 2012)

In Frizzell v. State, 238 So. 2d 67 (Fla. 1970), the defendant had been

serving a ten (10) year sentence for robbery concurrently with a ten (10) year

sentence for uttering a forged instrument. Id. at 68. Frizzell did not attack his

10

conviction and sentence for uttering "but contended that his robbery conviction and

sentence should be set aside and alleges that his right of appeal from the conviction

was thwarted." Id. After discussing a brief history of the concurrent sentence

doctrine vis-à-vis the writ of habeas corpus, this Court reviewed three United

States Supreme Court cases - Benton v. Maryland, 395 U.S. 784, 89 S.Ct. 2056, 23

L.Ed.2d 707 (1969), Peyton v. Rowe, 391 U.S. 54, 88 S.Ct. 1549, 20 L.Ed.2d 426

(1968) and Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1912, 20 L.Ed.2d 917 (1968)

- and held:

We expressly recede from all prior decisions of this Court which holdthat a writ of habeas corpus cannot issue if the petitioner is notentitled to immediate release from his confinement. From henceforththis Court will consider the merits of petitions for habeas corpus eventhough the petitioner is not entitled to be released if successful in hisattack on a conviction, and regardless of whether the sentences areconcurrent or consecutive.

238 So. 2d at 69.

The Supreme Court opinions on which Frizzell relies involve questions of

the jurisdiction of courts to hear petitions in the nature of writs of habeas corpus

arising out of the collateral consequences of convictions. In Benton v. Maryland,

395 U.S. 784, 792 (1969), the Supreme Court discussed the concurrent sentencing

doctrine noting that "[t]he concurrent sentence rule may have some continuing

validity as a rule of judicial convenience. That is not a subject we must canvass

today, however. It is sufficient for present purposes to hold that there is no

11

jurisdictional bar to consideration of challenges to multiple convictions, even

though concurrent sentences were imposed." In Peyton v. Rowe, 391 U.S. 54

(1968), the United States Supreme Court stated, "[w]e overrule McNally and hold

that a prisoner serving consecutive sentences is 'in custody' under any one of them

for purposes of s 2241(c)(3). This interpretation is consistent with the statutory

language and with the purpose of the writ of habeas corpus in the federal courts."

(footnote omitted) In Sibron v. New York, 392 U.S. 40, 57-58 (1968), the Supreme

Court, in determining that the Petitioner could bring his federal habeas petition,

noted that:

St. Pierre v. United States [319 U.S. 41, 63 S.Ct. 910, 87 L.Ed. 1199(1943)], supra, must be read in light of later cases to mean that acriminal case is moot only if it is shown that there is no possibilitythat any collateral legal consequences will be imposed on the basis ofthe challenged conviction. That certainly is not the case here. Sibron'has a substantial stake in the judgment of conviction which survivesthe satisfaction of the sentence imposed on him.' Fiswick v. UnitedStates, supra, 329 U.S. at 222, 67 S.Ct. at 230. The case is not moot.

Sibron v. New York, 392 U.S. 40, 57-58 (1968). In Frizzell this Court appears to

have focused on these potential "collateral legal consequences" in reaching its

decision. Specifically, this Court explained:

[e]ven when a concurrent sentence not attacked precludes releasefrom prison, the prisoner who is successful in getting one of hissentences set aside may obtain more favorable consideration forparole or be permitted to serve as a trusty. In Sibron v. New York,[ 392U.S. 40, 88 S.Ct. 1912, 20 L.Ed.2d 917 (1968)] the U.S. SupremeCourt recognized that 'collateral consequences' resulting from a

12

conviction may entitle a person who has already completed serving asentence to an opportunity to attack his conviction. All the morereason exists for allowing an attack on a sentence which is beingserved.

Frizzell at 69. (footnote omitted)

It is important to note that Frizzell, as well as the United States Supreme

Court cases all cited within it all dealt with prisoners attacking the convictions as

well as the sentences imposed. In the case at bar, Petitioner merely challenged the

sentence imposed, not the underlying conviction. Notably, the adjustment made to

Petitioner's sentence was a reduction from life in prison to thirty (30) years - an

action tantamount to a ministerial act as, from a practical matter, Petitioner's time

spent in prison would not be changing at all due to his concurrent, unchallenged

and uncharged life sentence. Moreover, even if it were to be deemed that there

was some potential "collateral consequence" of this re-sentencing, any "collateral

consequence", if there was to be one, inured to the benefit of Petitioner, not his

detriment as his sentence on count one was reduced from life in prison to thirty

(30) years. Accordingly, the rationale in Frizzell on this basis of is inapplicable to

the case at bar, or is, at most, distinguishable as the "collateral consequence" of

this re-sentencing would serve, if anything, to help Petitioner.

Petitioner's life sentence on the burglary charge is, in fact, a life sentence.

In 1997, the Fourth District Court of Appeal explained the gain time statutes from

both 1977 and 1995, sections 944.27(1), Fla. Stat. (1977) and 944.275(3)(a), Fla.

13

Stat. (1995), respectively, in Tal-Mason v. State, 700 So. 2d 453 (Fla. 4th DCA

1997) as follows:

There also seems to be no dispute that, under a life sentence, hecannot earn gain time, no matter how exemplary his conduct may bewhile incarcerated. As of now, the gain time statute explicitly limitsits application to sentences for a term of years. See § 944.275(3)(a),Fla. Stat. (1995) ("The department shall also establish for eachprisoner sentenced to a term of years a 'tentative release date' whichshall be the date projected for the prisoner's release from custody byvirtue of gain-time granted or forfeited as described in this section.").When the crime was committed in 1977, however, the gain-timestatute was differently worded. It then read:

"The Department of Offender Rehabilitation shallgrant the following deductions for gain-time on amonthly basis, as earned, from the sentences of everyprisoner who has committed no infraction of the rules ofthe department ..., to wit:

(a) Five days per month off the first and secondyears of the sentence;

(b) Ten days per month off the third and fourthyears of the sentence; and

(c) Fifteen days per month off the fifth and allsucceeding years of the sentence ...." [e.s.]

§ 944.27(1), Fla. Stat. (1977). Although this provision lacks theimmediate clarity of the present statute, we construe its meaning to bethe same. A life sentence has no "first and second year of thesentence" because the sentence pronounced by the trial court containsno "years" as such. Rather, it contains a single measurement, "life,"which could, in retrospect, turn out to be moments, days, weeks ormonths-as well as, of course, years. We understand the statutoryterm "sentence," however, to mean the term imposed by the court andnot the amount of time actually later served by the prisoner.

14

Tal-Mason v. State, 700 So. 2d 453, 455-457 (Fla. 4th DCA 1997) (emphasis in

original)(review denied Tal-Mason v. Satz, 624 So.2d 269 (Fla. 1993). See also

Lewis v. State, 625 So. 2d 102, 103 (Fla. 13' DCA 1993)(stating "[u]nder current

law, one serving a life sentence, whether pursuant to guidelines sentencing or

habitual offender sentencing, is ineligible for parole or gain-time. See Sections

775.084(4)(e), 921.001(10), 944.275(2)(a), Florida Statutes (1991); Wemett v.

State, 567 So.2d 882 (Fla.1990); Burdick v. State, 584 So.2d 1035 (Fla. 1st DCA

1991) approved in part and quashed in part 594 So.2d 267 (Fla.1992); see also

Dolan v. State, 618 So.2d 271 (Fla. 2d DCA 1993). However, because the trial

court's intent to impose a life sentence is unambiguous, we affirm the judgment

and sentence.") But see Heggs v. State, 759 So. 2d 620 (Fla. 2000)(holding chapter

85-184, Laws of Florida unconstitutional as violative of the single subject rule, and

later deemed to be applicable to offenses committed between October 1, 1995 and

May 24, 1997 in Trapp v. State, 760 So. 2d 924, 928 (Fla. 2000))

As early as 1993, it was recognized that life sentences are true life sentences

after parole was abolished after October 1, 1983 for non-capital felonies:

In fact, the speculation by counsel and the trial court appears to havebeen incorrect. In his lucid and informative amicus curiae brief,counsel for the Florida Parole Commission has explored thesignificance of a life sentence under guidelines. For anyone convictedof a non-capital felony committed on or after October 1, 1983, theterm "parole" no longer exists. See § 921.001(8), Fla.Stat. (1983).Capital felons are still parole-eligible as they are not sentenced undersection 921.001. Gresham v. State, 506 So.2d 41 (Fla. 2d DCA 1987).

15

At first blush, it may seem an anomaly that the mostserious type of offender-the capital felon-would beeligible for early release on parole, whereas thosecommitting less serious life felonies, or even first degreefelonies, are subject to 'true life sentences' withouteligibility for parole. However, the sentencing guidelinesfactor in more than just the seriousness of the crime. Thedefendant's prior criminal record, additional offenses atconviction, and legal status at the time of offensedetermine the sentence imposed under the sentencingguidelines. If an inmate's criminal record is so bad as toscore life under the sentencing guidelines, the argumentcan be made that he probably deserves a true lifesentence.Brief of amicus curiae, 6-7.

However, in 1990 the Florida Parole Commission implemented the"Control Release Program," which is governed by section 947.146,Florida Statutes (1991). Section 921.001(1) was amended to recognizecontrol release as one of the few authorized opportunities of earlyrelease for a prisoner sentenced under guidelines. The purpose of thecontrol release program, which is directed solely to inmates who arenot eligible for parole, is to alleviate prison overcrowding.

Not all guideline-sentence prisoners can be considered for controlrelease; the statute excludes, among others, those serving minimummandatory sentences, sex offenders, habitual felony offenders, andthose convicted of certain violent felonies. Dolan, by virtue of aconviction for attempted second degree murder, appears to beineligible. Section 947.146(4)(i). That is, for the time being anddiscounting truly exceptional developments such as executiveclemency, Dolan may reasonably expect to pass out his days in thecustody of the Department of Corrections. However, as noted bycounsel for the Commission, such provisions "are, of course, subjectto legislative amendment, and may be expanded or restricted in thefuture." FN1

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FN1. These observations are not intended to promptfuture speculation, and inevitable litigation, about what acertain sentence "really" means.

Dolan v. State, 618 So. 2d 271, 272-273 (Fla. 2d DCA 1993). The State would

note that Petitioner could have been would likewise be ineligible for the "Control

Release Program" discussed in Dolan as Petitioner was sentenced as a violent

habitual offender. Section 947.146(4)(g), Fla. Stat. (1992 Supp.)1 disallowed

controlled release for prisoners sentenced under section 775.084, the statue relating

to, inter alia, violent habitual offenders.

The case at bar is also unlike cases such as Leonard v. State, 760 So. 2d 114

(Fla. 2000). Part of the issue in Leonard involved an illegal uncorrected sentence

which was being served concurrently with a longer sentence. Id. This Court noted:

The State also argues that Leonard has suffered no prejudice from theerroneous imposition of this illegal sentence because it is to be servedconcurrently with other sentences that are unchallenged. However, thefact that the illegal sentence is to be served concurrently with anothersentence does not mean that it should remain uncorrected.

Leonard v. State, 760 So. 2d 114 (Fla. 2000) at FN4. In the case sub judice,

however, Petitioner's illegal sentence was corrected by the trial court, so the

rationale ofLeonard is inapplicable.

1947.146(3)(g), Fla. Stat. (1993) does not apply as Section 30, ch. 93-406 providedthat effective June 1, 1995, "[t]he amendment to paragraph (g) of subsection (3) ofs. 947.146, Florida Statutes, contained in this act shall be null and void and thatparagraph shall revert to the language existing in that paragraph on April 22,1993."

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The need for reconsideration of the abrogation of the concurrent sentence

doctrine is well-expressed in a specially concurring opinion by Judge Warner on

the Fourth District Court of Appeal in Hutchinson v. State, 979 So. 2d 377 (Fla. 4th

DCA 2008) who wrote:

I concur in the opinion only because I am bound by thesupreme court's pronouncement in Leonard v. State, 760 So.2d 114,116 n. 4 (Fla.2000). I write to note that this is a prime example of theneed to revamp postconviction relief in Florida. The defendant in thiscase was sentenced for first-degree murder and kidnapping committedtwenty years ago. His motion to correct an illegal sentence, filed in2006, addresses an illegal sentencing only for his kidnapping count.He is still under a sentence for life in prison, with a mandatoryminimum of twenty-five years, for the concurrent first-degree murdercount.

In Higgins v. State, 890 So.2d 519 (Fla. 4th DCA 2005), werejected the state's argument that a defendant suffers no prejudicefrom an illegal sentence when it is imposed concurrently with otherunchallenged sentences. We relied on a footnote in Leonard whichsaid:

The State also argues that Leonard has suffered noprejudice from the erroneous imposition of this illegalsentence because it is to be served concurrently withother sentences that are unchallenged. However, the factthat the illegal sentence is to be served concurrently withanother sentence does not mean that it should remainuncorrected.

760 So.2d at 116 n. 4. I am not sure why it is necessary to go throughthis essentially meaningless exercise of correcting an illegal sentenceimposed so long ago, which will have absolutely no effect on thedefendant's liberty. He will have served his sentence for kidnappingbefore he completes his sentence for murder.

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In this case a trial court had to review the defendant's motion.The state attorney presented a response. This court has reviewed theappeal, and the state again was ordered to respond. We have writtenan opinion and directed the trial court to correct the scoresheet andreview the sentence in light of the application of the correctguidelines. Potentially, the trial court may have to resentence thedefendant, requiring his presence in court, at further expense to thestate. However, none of this will make any difference whatsoever tohis liberty interests. The amount ofjudicial and state attorney time, aswell as expense, wasted on this case should cry out for revision of ourrules of procedure on postconviction motions, particularly correctionsof illegal sentences.

Hutchinson v. State, 979 So. 2d 377, 377-378 (Fla. 4* DCA 2008)(Warner, J.,

specially concurring).

Petitioner is correct that under the guidelines that were in effect from 1983

until 1998, when the Criminal Punishment Code (hereinafter "CPC") started, the

guidelines scoresheets totaled the points for all of the convictions and came up

with a grand total, with a base minimum and an upper maximum.2

As this Court explained in Nettles v. State, 850 So. 2d 487, 492-493 (Fla.

2003):

2 Section 921.001(4)(a), Fla. Stat. (1983) states: "The guidelines shall be appliedto all felonies, except capital felonies, committed on or after October 1, 1983, andto all felonies, except capital and life felonies, committed prior to October 1, 1983,for which sentencing occurs after such date when the defendant affirmativelyselects to be sentenced pursuant to the provisions of this act." The CriminalPunishment Code became effective on October 1, 1998. See ch. 97-194 §§ 1-2 at3674, Laws ofFla. See also Section 921.002, Fla. Stat. ("The Criminal PunishmentCode shall apply to all felony offenses, except capital felonies, committed on orafter October 1, 1998.")

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In Jones v. State, 813 So.2d 22 (Fla.2002), we recognized that theestablishment of the Criminal Punishment Code in 1998 madesubstantial changes relating to the sentencing guidelines. See id. at 25.Under the former sentencing guidelines, a narrow range of permissiblesentences was determined through a strict mathematical formula. See§ 921.0014(2), Fla. Stat. (2000). It was then within the judge'sdiscretion to sentence the defendant within that narrow range. Incontrast, under the now-applicable CPC, "[t]he permissible range forsentencing shall be the lowest permissible sentence [as determined bythe number of total sentencing points] up to and including thestatutory maximum." § 921.0024(2), Fla. Stat. (2000). Conceptually,the CPC and the former sentencing guidelines are not synonymous,and, therefore, the PRRPA's reference to the sentencing guidelines insection 775.082(9)(a)3. does not, as the dissent maintains, forbidsentencing under the CPC.

Nettles v. State, 850 So. 2d 487 (Fla. 2003). As further explained in Moore v.

State, 882 So. 2d 977, 985 (Fla. 2004):

Under the prior guidelines, the individual offenses were consideredinterrelated because together they were used to establish the minimumand maximum sentence that could be imposed. To the contrary,however, under the CPC, together the individual offenses onlyestablish the minimum sentence that may be imposed; a singlemaximum sentence is not established-each individual offense has itsown maximum sentence, namely the statutory maximum for thatoffense. Under the CPC, multiple offenses are not interrelated as theywere previously under the guidelines.

Moore v. State, 882 So. 2d 977, 985 (Fla. 2004).

Under the true version of the concurrent sentence doctrine, that doctrine was

implicated when a conviction was being attacked, while another conviction, with

an equal or greater sentence is not being attacked. In the instant case, there was

not a challenge to the conviction, but rather only a challenge to one of the two

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concurrent sentences. As a result, there would never be any adjustment in point

totals under the then existing guidelines scoresheets. Moreover, in cases which did

fall under the guidelines from 1983-1998, the petitioner would be partially correct,

to the extent that if the defendant were challenging a conviction, and the conviction

was overturned, and both offenses fell under the guidelines, the absence of one

conviction would reduce point totals and reduce minimum and maximum possible

sentences absent departures. That, however, is not implicated in cases such as this

one which do not challenge convictions and go only to the existence of one or

more, but not all, concurrent sentences and an equal or greater concurrent sentence

remains unchallenged and not at issue. Thus, in all cases such as the instant one,

under the sentencing guidelines from 1983-1998, where it is just the sentences at

issue and not the convictions, Petitioner's argument is inapplicable. Petitioner's

argument is more inapplicable in any post-1983 cases falling under the CPC, where

the offense was committed after October 1, 1998, as those cases only have

scoresheets with base minimums below which the trial court cannot go without a

departure reason, with no maximum other than the statutory maximum for the

offense.

Thus, in the instant case, the concurrent sentence doctrine essentially

functions as a subset of the greater doctrine, as it is only one concurrent sentence

being challenged, without a contemporaneous challenge to the conviction. The

21

instant case demonstrates that there are situations, including the one present in the

case subjudice, as well as many others, in post-1983 offense cases, where there is

no possibility of parole, that the concurrent sentence doctrine should be alive and

well.

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CONCLUSION

WHEREFORE, the State of Florida respectfully requests an Order of this

Court affirming the decision of the district court.

Respectfully submitted,

s/cMcliard^£. cPolinRICHARD L. POLINBureau ChiefFlorida Bar No. 0230987

PAMELA JO BONDIAttorney General

s/J _ . v rJAY E. SILVERAssistant Attorney GeneralFlorida Bar No. 0353050Office of the Attorney GeneralDepartment of Legal Affairs444 Brickell Avenue, Suite 650Miami, FL 33131Telephone: (305)377-5441Facsimile: (305) 377-5655Primary: CrimAppMIA@myfloridalegal.comSecondary: jay.silver@myfloridalegal.com

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a true and correct copy of the foregoing

PETITIONER'S BRIEF ON THE MERITS was mailed to Deana K. Marshall,

Esq., Law Office of Deana K. Marshall, P.A., P.O. Box 1058, Riverview, FL

33568 and emailed to Attorney.Marshall@verizon.net on this 6th day of

December, 2012.

s/Jay . SilverJAY E. SILVERFlorida Bar Number 0353050Assistant Attorney General

CERTIFICATE OF COMPLIANCE WITH TYPE AND FONT

I HEREBY CERTIFY that this brief is typed in compliance with the

requirements set forth in Rule 9.210(a)(2) of the Florida Rules of Appellate

Procedure.

s/7ay rJAY E. SILVERFlorida Bar Number 0353050Assistant Attorney General

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