Tony E. Smith v. State of Florida , 248 So. 3d 186 ( 2018 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
_____________________________
No. 1D17-1141
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TONY E. SMITH,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
_____________________________
On appeal from the Circuit Court for Duval County.
Marianne L. Aho, Judge.
April 25, 2018
PER CURIAM.
This is an appeal from an order on a motion for clarification of
sentence, which we have treated as an appeal from a summary
ruling on a postconviction motion pursuant to Florida Rule of
Appellate Procedure 9.141(b)(2). We reverse and remand for
correction of Appellant’s judgments and sentences insofar as they
contain conflicting sentencing provisions, which are also
inconsistent with Appellant’s plea agreement.
Appellant entered a negotiated guilty plea to armed robbery
with a firearm in six cases: case numbers 2014-CF-2685, 2014-CF-
2746, 2014-CF-2747, 2014-CF-2748, 2014-CF-2749, and 2014-CF-
2750. The plea agreement clearly provided that the ten-year
mandatory minimum sentences in all of Appellant’s cases would
run concurrently except for the sentence in case number 2014-CF-
2685, which would run consecutively to the sentence in case
number 2014-CF-2746. Thus, Appellant would serve concurrent
sentences in case numbers 2014-CF-2746, 2014-CF-2747, 2014-
CF-2748, 2014-CF-2749, and 2014-CF-2750, after which he would
then serve the sentence in case number 2014-CF-2685.
However, the judgments and sentences erroneously reflect
that Appellant is to serve the sentence in case number 2014-CF-
2685 concurrently with—instead of consecutively to—the
sentences in case numbers 2014-CF-2747, 2014-CF-2748, 2014-
CF-2749, and 2014-CF-2750. Further, the judgments and
sentences reflect that although the sentence in case number 2014-
CF-2685 is to run consecutively to the sentence in case number
2014-CF-2746, the sentences in both of these cases are to run
concurrently with the sentences in case numbers 2014-CF-2747,
2014-CF-2748, 2014-CF-2749, and 2014-CF-2750. It is axiomatic
that two consecutive prison sentences cannot both run
concurrently with a third prison sentence where all three
sentences are of equal length.
The judgments and sentences must be corrected to
consistently reflect the sentence structure outlined by the
negotiated plea agreement. Thus, we reverse and remand with
directions that that trial court correct the judgment and sentence
in case number 2014-CF-2685 by removing all reference to the
sentence running concurrently with the sentences in case numbers
2014-CF-2747, 2014-CF-2748, 2014-CF-2749, and 2014-CF-2750.
Moreover, we direct the trial court to correct the judgments and
sentences in case numbers 2014-CF-2747, 2014-CF-2748, 2014-
CF-2749, and 2014-CF-2750 by removing all reference to the
sentences therein running concurrently with the sentence in case
number 2014-CF-2685. To the extent Appellant claims that double
jeopardy principles require that all of his sentences run
concurrently, Appellant has no legitimate expectation of finality in
a sentence structure that is inconsistent with his negotiated plea
agreement. See Annatone v. State, 198 So. 3d 1031, 1033-35 (Fla.
5th DCA 2016) (citing Dunbar v. State, 89 So. 3d 901 (Fla. 2012));
see also Martinez v. State, 216 So. 3d 734, 739-40 (Fla. 4th DCA
2017) (en banc).
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REVERSED and REMANDED with directions.
LEWIS, ROBERTS, and JAY, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Tony E. Smith, pro se, Appellant.
Pamela Jo Bondi, Attorney General, and Virginia C. Harris,
Assistant Attorney General, Tallahassee, for Appellee.
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