NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
TIMOTHY WAYNE HERNANDEZ, )
)
Appellant, )
)
v. ) Case No. 2D18-4310
)
STATE OF FLORIDA, )
)
Appellee, )
)
Opinion filed October 11, 2019.
Appeal from the Circuit Court for
Hillsborough County; Thomas P. Barber,
Judge.
Howard L. Dimmig, II, Public Defender,
and Timothy J. Ferreri, Assistant Public
Defender, Bartow, for Appellant.
Ashley Moody, Attorney General,
Tallahassee, and Helene S. Parnes,
Assistant Attorney General, Tampa,
for Appellee.
PER CURIAM.
Timothy Wayne Hernandez appeals his judgment and sentence for
contempt.1 On appeal, he argues that the trial court erred in imposing his contempt
sentence consecutive to any sentences imposed after the resolution of his pending
felony case. The State has properly conceded error, and we reverse his sentence.2
Hernandez was charged with multiple felonies. At a hearing, Hernandez
was held in direct criminal contempt for his behavior in court. The circuit court
sentenced him to six months in county jail to be served consecutive to any sentence
Hernandez would receive in his existing criminal case. During the pendency of this
appeal, Hernandez filed a motion to correct illegal sentence pursuant to Florida Rule of
Criminal Procedure 3.800(b)(2), but the motion was deemed denied when the circuit
court failed to timely rule on it.3
On appeal, Hernandez argues that his sentence is illegal because it was
ordered to commence at the conclusion of a future sentence yet to be announced. The
State has properly conceded error. As this court has previously recognized, a court
may not impose a sentence "consecutive to a sentence yet to be imposed on another
offense." Johnson v. State,
538 So. 2d 553, 554 (Fla. 2d DCA 1989). Accordingly, we
affirm Hernandez's judgment for contempt but reverse his sentence and remand for the
entry of a corrected sentence.
1Although
the contempt charge was assigned a misdemeanor case
number, we have jurisdiction. See Schaab v. State,
33 So. 3d 763, 765 (Fla. 4th DCA
2010).
2Hernandez does not challenge his contempt judgment. Accordingly, we
affirm it without comment.
3Althoughthe circuit court did eventually enter an order on the motion, the
order was a nullity because it was entered beyond the sixty-day time period specified in
the rule. See Miran v. State,
46 So. 3d 186, 188 (Fla. 2d DCA 2010).
-2-
Affirmed in part; reversed in part; remanded.
CASANUEVA, VILLANTI, and BLACK, JJ., Concur.
-3-
