McNamara v. State, No. 74-1737

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No. 74-1737 | Fla. Dist. Ct. App. | Dec 2, 1975

Lead Opinion

NATHAN, Judge.

John P. McNamara was convicted of grand larceny on May 21, 1970, in Dade County, and sentenced to one year in the Dade County Jail. Subsequently this sentence was modified to one year in the State Penitentiary. This modified order is not on appeal. He appeals from the trial court’s summarily denying his relief under Rule 3.850 RCrP. On February 8, 1972, he was adjudicated guilty of assault with intent to commit grand larceny in Broward County, Florida, and sentenced to 20 years in the State Penitentiary where he is presently incarcerated.

Both sentencing orders are silent as to whether the 20 year sentence is to run concurrent with, or consecutive to the one year sentence. McNamara contends that his sentences run concurrently and that this should have been corrected by the court by his motion for post conviction relief under the rule. McNamara does not allege, nor is there any error in the sentences imposed by the trial courts.

*703Rule 3.722, RCrP provides that sentences imposed without designation that they be served consecutively, shall then be served concurrently. McNamara, therefore, has no remedy in the trial court or this court by means of Rule 3.850, RCrP. Relief from improper judgment or imposition of sentence or correction of sentence is available only when the judgment was rendered without jurisdiction or the sentence imposed was not authorized by law or was otherwise open to collateral attack; or the court, in imposing judgment and sentence, infringed or denied defendant’s constitutional rights. Crusoe v. State, Fla.App. 1966, 183 So. 2d 600" court="Fla. Dist. Ct. App." date_filed="1966-02-23" href="https://app.midpage.ai/document/crusoe-v-state-1910295?utm_source=webapp" opinion_id="1910295">183 So.2d 600. When McNamara is, or is about to be, detained for a longer period than that provided by law, he may seek his appropriate remedy at that time.

Affirmed.

Rehearing

ON PETITIONS FOR REHEARING

PER CURIAM.

Petitions for rehearing have been filed in this cause by John P. McNamara, the appellant, and by the State of Florida, the appellee. Both petitions are denied.

In the petition for rehearing filed by the State, our attention is directed to Benyard v. Wainwright, Fla.1975, 322 So. 2d 473" court="Fla." date_filed="1975-10-29" href="https://app.midpage.ai/document/benyard-v-wainwright-1849836?utm_source=webapp" opinion_id="1849836">322 So.2d 473, filed October 29, 1975, which recognizes the conflict between Rule 3.722, RCrP, and § 921.16, Fla.Stat. Rule 3.722, RCrP, directs that sentences are concurrent unless affirmatively designated as consecutive by the sentencing court, and § 921.16, Fla.Stat., provides:

“When sentences to be concurrent and when consecutive. . . . Sentences of imprisonment for offenses not charged in the same indictment, information, or affidavit shall be served consecutively unless the court directs that two or more of the sentences be served concurrently.”

In the opinion of the Florida Supreme Court, “ . . . the statute must prevail over our rule because the subject is substantive law.”

Therefore, we modify our opinion to reflect that pursuant to § 921.16, Fla.Stat., the sentences under review shall be served consecutively.

It is so ordered.