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Fuller v. State

District Court of Appeal of Florida, Fifth District
Feb 6, 2004
867 So. 2d 469 (Fla. Dist. Ct. App. 2004)

Summary

holding that "[t]he whole point in Hale is that once the habitual offender sentencing scheme is utilized to enhance a sentence beyond the statutory maximum on one or more counts arising from a single criminal episode, consecutive sentencing may not be used to further lengthen the overall sentence"

Summary of this case from Mills v. State

Opinion

Case No. 5D03-925.

Opinion filed February 6, 2004.

Appeal from the Circuit, Court for Volusia County, S. James Foxman, Judge.

David Fuller, Sneads, Pro se.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Lamya A. Henry, Assistant Attorney General, Daytona Beach, for Appellee.


Appellant challenges the lower court's decision which denied his motion brought pursuant to Rule 3.800 (a), Florida Rules of Criminal Procedure. Appellant raises several points on appeal, only one of which merits discussion, whether his fifteen-year probationary sentence on count V may run consecutive to his thirty-year habitual offender sentence on count I, even though both counts involve crimes that arose from a single criminal episode. We conclude that the consecutive sentences are not permitted and reverse for resentencing.

Originally, Appellant received a fifteen-year consecutive probationary sentence on count V, but he was also sentenced as an habitual offender on that count. On motion, the state conceded that the sentence was illegal under Hale v. State, 630 So.2d 521 (Fla. 1993). Upon resentencing, the court simply deleted the habitual offender designation on count V and reimposed the same sentence because fifteen years was within the statutory maximum, without enhancement, under the habitual offender statute. The issue in this appeal is whether the court properly imposed a non-habitual sentence consecutive to an habitual offender sentence where both crimes arose from the same criminal episode. Although not cited by either party in their briefs on appeal, we have previously answered this question in the negative in Canavan v. State, 842 So.2d 306 (Fla. 5th DCA 2003). When we offered the State an opportunity to address this case in light of Canavan, the rather vague response we received was less than helpful, but apparently acknowledged that our disposition of this case is governed by Canavan.

We think our holding in Canavan is mandated by Hale. The whole point in Hale is that once the habitual offender sentencing scheme is utilized to enhance a sentence beyond the statutory maximum on one or more counts arising from a single criminal episode, consecutive sentencing may not be used to further lengthen the overall sentence. Although not cited by either party on appeal, we note and certify conflict with Davis v. State, 710 So.2d 1051 (Fla. 1st DCA 1998).

We assume that the State's failure to cite two cases directly on point, one of which is a controlling decision of this court, was an oversight. We express our sincere hope that the State might be more helpful in focusing the court's attention on controlling case law in the future, especially where, as here, the Appellant is pro se.

REVERSED AND REMANDED.

PLEUS and PALMER, JJ., concur.


Summaries of

Fuller v. State

District Court of Appeal of Florida, Fifth District
Feb 6, 2004
867 So. 2d 469 (Fla. Dist. Ct. App. 2004)

holding that "[t]he whole point in Hale is that once the habitual offender sentencing scheme is utilized to enhance a sentence beyond the statutory maximum on one or more counts arising from a single criminal episode, consecutive sentencing may not be used to further lengthen the overall sentence"

Summary of this case from Mills v. State

holding that "[t]he whole point in Hale is that once the habitual offender sentencing scheme is utilized to enhance a sentence beyond the statutory maximum on one or more counts arising from a single criminal episode, consecutive sentencing may not be used to further lengthen the overall sentence" and certifying conflict with Davis

Summary of this case from Hamilton v. State

holding that under Hale, a non-habitual offender sentence cannot run consecutively to an habitual offender sentence that exceeded the statutory maximum for the degree of felony subject to enhanced sentencing

Summary of this case from Peel v. State

In Fuller v. State, 867 So.2d 469 (Fla. 5th DCA 2004), the court examined Hale's holding in the context of a habitual offender sentence imposed together with a non-habitual offender sentence.

Summary of this case from Dawson v. State
Case details for

Fuller v. State

Case Details

Full title:DAVID ALLEN FULLER, Appellant, v. STATE OF FLORIDA, Appellee

Court:District Court of Appeal of Florida, Fifth District

Date published: Feb 6, 2004

Citations

867 So. 2d 469 (Fla. Dist. Ct. App. 2004)

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