Benjamin v. State

95-04460 | Fla. Dist. Ct. App. | Jan 24, 1996

667 So. 2d 437" date_filed="1996-01-24" court="Fla. Dist. Ct. App." case_name="Benjamin v. State">667 So.2d 437 (1996)

John Lester BENJAMIN, Appellant,
v.
STATE of Florida, Appellee.

No. 95-04460.

District Court of Appeal of Florida, Second District.

January 24, 1996.

PER CURIAM.

John Lester Benjamin appeals the summary denial of his postconviction motion. It is asserted that the imposition of a six-year sentence of incarceration as a habitual offender and a consecutive sentence of four years' probation as a habitual offender is improper under the dictates of Hale v. State, 630 So. 2d 521" date_filed="1993-10-14" court="Fla." case_name="Hale v. State">630 So.2d 521 (Fla. 1993), cert. denied, ___ U.S. ___, 115 S.Ct. 278, 130 L.Ed.2d 195 (1994). Benjamin's argument is well-taken as the prohibition against consecutive habitual offender sentences applies to a sentence of imprisonment on one count, followed by a term of probation on another count arising from a single criminal episode. See Jackson v. State, 662 So. 2d 738" date_filed="1995-11-03" court="Fla. Dist. Ct. App." case_name="CDB v. State">662 So.2d 738 (Fla. 2d DCA 1995); Taylor v. State, 658 So. 2d 635" date_filed="1995-07-21" court="Fla. Dist. Ct. App." case_name="Taylor v. State">658 So.2d 635 (Fla. 2d DCA 1995); Green v. State, 643 So. 2d 1177" date_filed="1994-10-14" court="Fla. Dist. Ct. App." case_name="Green v. State">643 So.2d 1177 (Fla. 2d DCA 1994).

As a probationary sentence cannot be imposed concurrently with a prison term, upon resentencing, if the court decides to impose a term of incarceration for the offense of possession of burglary tools, that sentence must be made to run concurrently with the six-year habitual offender sentence.

Reversed and remanded for resentencing.

DANAHY, A.C.J., and PATTERSON and QUINCE, JJ., concur.