Summary
holding that the trial court must exercise its discretion to sentence the offender to concurrent or consecutive sentences
Summary of this case from Richardson v. StateOpinion
No. 4D99-3861
Opinion filed February 16, 2000 JANUARY TERM 2000
Appeal of order denying rule 3.850 motion from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Marvin Mounts, Jr., Judge; L.T. No. 97-13738 CFA02.
Gregory McCarthur, Immokalee, pro se.
Robert A. Butterworth, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
We reverse the denial of Gregory McCarthur's postconviction motion. The trial court expressly declined to exercise its discretion under section 921.16(1), Florida Statutes (1997), to decide whether the sentence imposed in this case would run concurrently or consecutively to the punishment to be imposed for McCarthur's control release violation in an earlier case. Instead, the court left the matter to the Parole Commission to decide.
We find that the record conclusively disproves McCarthur's claim that the terms of his plea agreement required concurrent sentences.
The legislature vested the courts with the authority to make this determination. See § 921.16(1), Fla. Stat.; Bruce v. State, 679 So.2d 45 (Fla. 3d DCA 1996). Even where no decision has been made on the control release violation by the time of sentencing, the trial court still has the discretion to run the sentence either concurrently or consecutively to any future punishment for the violation. See Scantling v. State, 711 So.2d 524 (Fla. 1998). McCarthur is entitled to postconviction relief because, in his case, the trial court refused to exercise its lawful discretion.
We, therefore, reverse the order denying McCarthur's motion. On remand, the trial court shall resentence McCarthur to the same term, but shall provide for that term to run either concurrently or consecutively to the period of incarceration imposed on the control release violation.
DELL, STEVENSON and TAYLOR, JJ., concur.