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,
STATE of Florida, Appellee.

No. 95-04460.

District Court of Appeal of Florida, Second District.

January 24, 1996.


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" date_filed="1994-10-03" court="SCOTUS" case_name="Reynolds v. Tennessee">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.