Thomas v. StateThomas v. State
Terry Lee Thomas appeals from an order grаnting the State‘s motion to correct illegal sentence. We agree with Thomas that the trial court improperly altered his sentence and, therefore, reverse.
In case number 01-7082, a jury found Terry Lee Thomas guilty of battery on a law enforcement officer and resisting an officer with violence. At the sentencing hearing, Thomas pleaded no contest to additional offenses in three cases: in case number 01-3306, to possession of а firearm by a convicted felon; in number 02-5267, to possession of a firebomb; and in number 02-5786, to false imprisonment and battery.
The no contest pleas were entered pursuant to a written agreement which provided that each third-degree felony was to be enhanced under the habitual offender statute to ten years in prison with a concurrent five-year prison releasee reoffender enhancement. There was to be no habitual оffender enhancement for the possession of a firearm charge, a second-degree felony, and Thomas was to receive three years for that offense, as a minimum mandatory. Of significance, the plea agreement contained the provision that “[a]ll sentences will be co-terminus.”
The trial court accepted the pleas and, pursuant to the agreement, sentenced Thomas as follows: (1) in 01-3306, “to
On May 14, 2004, the State filed in the trial court a motion to correct Illegal sentence pursuant to
There is no logical manner in which a 10 year HFO sentence with a 5 year PRR mandatory minimum can be “co-terminous” with a three year mandatory minimum sentence in CF01-03306A-XX and still qualify as a legal sentence. The Departmеnt [of Corrections] has requested an Amended Judgment and Sentence for all cases involved.
A hearing on the motion was held on May 28, 2004. At the hearing, Thomas‘s attorney, Mr. Abaray, objected to the State‘s intent to call Thomas‘s рrevious attorney, Mr. Sullivan, as a witness. The court denied the objection. The State called Mr. Sullivan, who testified that, from what he could remember, the coterminous provision was put into the plea agreement becаuse he wanted to make sure Thomas got the same amount of jail credit, the maximum amount, on each of the four cases. Since that time, Mr. Sullivan came to understand that coterminous meant that the sentences all ended at the same time. He did not remember exactly what he thought the term meant at the time of the sentencing.
The assistant state attorney, Mr. McNeal, told the court he did not believe Mr. Sullivan inserted the coterminous provisiоn into the plea agreement “as an example of slick lawyering.” Mr. McNeal then argued the sentence was illegal because he did not envision that the result would be a three-year sentence for Thomas. He asked the court to amend the judgment and sentence to enforce the plea agreement without the word “coterminous.” The court asked if it could do that without violating double jeopardy. Mr. McNeal argued that the сourt could correct an illegal sentence at any time. The court noted that Thomas received a three-year minimum mandatory sentence for the possession of a firearm conviction and stated that thе sentence was not proper because “there was no finding of actual possession.” The court suggested that the State just dismiss the possession of a firearm charge, but Mr. McNeal indicated that the court could not vacate the charge unless Thomas filed a motion to vacate.
Mr. McNeal was questioned by the defense counsel. He stated that at the time he agreed to the coterminous provision, he did not understand what coterminous meant. He had never heard that term before. He did not do any research to determine the meaning of the term within thirty days after the sentencing. Personnel
On appeal, Thomas argues that the sentenсe was not subject to correction pursuant to
We concludе that the original sentence, although it may have been improper, was not an illegal sentence as that term is currently understood. See Carter v. State, 786 So.2d 1173 (Fla.2001); Robinson v. State, 757 So.2d 532, 533 (Fla. 4th DCA 2000) (discussing types of sentences that can be corrected by
Contrary to DOC‘s contention here, however, an otherwise lawful coterminous sentence6 does not constitute “court-ordered gain time” whereby the sentencing court is directly ordering DOC to award gain time. Nor can such a sentence be treated as “surplusage” in the sentencing order, as the DOC asserts. Instead, a coterminous sentence is a sentencing decision in which a court exercises its discretion to mitigate a defendant‘s sentence. Cf. Singletary v. Marchetti, 691 So.2d 65 (Fla. 3d DCA 1997) (treating sentencing order giving credit for cоunty jail gain time as a mitigation of sentence rather than an award of gain time); Gaston v. State, 613 So.2d 496 (Fla. 2d DCA 1993) (same). Accordingly, DOC violates the separation of power doctrine when it refuses to carry out the sentence imposed by the cоurt. See
art. I, § 18, Fla. Const. (“No administrative agency. . . shall impose a sentence of imprisonment, nor shall it impose any other penalty except as provided by law.“).6 As noted in a footnote in the opinion below, DOC conceded at oral argument that the trial court could have lawfully imposed concurrent sentences for Pearson‘s new crimes of the same or even shorter duration than the coterminous sentence. See Pearson [v. Moore], 767 So.2d [1235] at 1237 n. 1. Both parties also recognized this fact at oral argument before this Court.
Id. at 319 (emphasis added). Given that the supreme court has recognized the legitimacy of coterminous sentences in Pearson, we reject the State‘s argument that the coterminous sеntences here are illegal.
By granting the State‘s motion and removing the three-year sentence, the trial judge increased the amount of prison that Thomas would serve on the other sentences to effectuatе the court‘s original intent.1 Because the original sentence was a legal sentence, the trial court‘s action violated double jeopardy. Generally, a trial court has no authority to modify a sentence after a defendant has begun serving it. See Ashley v. State, 850 So.2d 1265, 1267 (Fla.2003); Pearson, 789 So.2d at 319-20; King v. State, 913 So.2d 758 (Fla. 2d DCA 2005); Pate v. State, 908 So.2d 613 (Fla. 2d DCA 2005); Bass v. State, 869 So.2d 1230 (Fla. 2d DCA 2004). While there are exceptions to this rule, such as the trial court‘s right to increase a sentence when the original sentence was induced by a fraudulent act, see Goene v. State, 577 So.2d 1306, 1308 (Fla.1991), the exceptions would not apply in this case.
Additionally, it is undisputed that there was not a scrivener‘s error in the original sentence. Rather, the coterminous language was misunderstood by the court and the parties when the original sentence was negotiated and imposed. Therefore, as long as the orally imposed sentence was legal, it cannot be changed through the
Accordingly, because the trial court lacked authority to alter the sentence originally imposed, and thereby increase the аmount of time that Thomas would serve, we reverse and remand with directions to reinstate the original sentence.
Reversed and remanded.
VILLANTI and LaROSE, JJ., Concur.