Third District Court of Appeal
State of Florida
Opinion filed March 1, 2023.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-2139
Lower Tribunal No. F08-29249B
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Bernard Pierre,
Appellant,
vs.
The State of Florida,
Appellee.
An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from
the Circuit Court for Miami-Dade County, Jose L. Fernandez, Judge.
Daniel J. Tibbitt, P.A., and Daniel Tibbitt, for appellant.
Ashley Moody, Attorney General, and Sandra Lipman, Assistant
Attorney General, for appellee.
Before EMAS, SCALES and HENDON, JJ.
EMAS, J.
INTRODUCTION
Bernard Pierre appeals from an order denying his motion to correct
illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a).
Pierre raises two claims: (1) the imposition of consecutive sentences was
illegal under Hale v. State,
630 So. 2d 521 (Fla. 1993) and Cotto v. State,
139 So. 3d 283 (Fla. 2014); and (2) the written sentence fails to conform to
the oral pronouncement, and must be remanded for entry of a corrected
sentence. For the reasons that follow, we affirm as to the first claim, and
hold that where a defendant is convicted of two offenses arising out of a
single criminal episode, one of which is enhanceable under the habitual
felony offender/habitual violent felony offender statute, and the sentence for
that offense is enhanced beyond the statutory maximum, the trial court may
lawfully order that the sentence on the remaining unenhanced offense be
served consecutively. As to the second claim, however, we reverse and
remand for entry of a corrected written sentence that conforms to the trial
court’s oral pronouncement.
FACTS AND PROCEDURAL BACKGROUND
The facts relevant to our discussion are brief and undisputed. Pierre
was charged with having committed several felonies in August 2008.
2
Following a trial at which Pierre was found guilty, the trial court imposed the
following sentences:
- Aggravated Assault with a Firearm (third-degree felony, statutory
maximum five years): ten years’ state prison (enhanced from five
years to ten years as a Habitual Violent Felony Offender (HVFO))1
with a five-year mandatory minimum;
- Possession of a Firearm by a Convicted Felon (second-degree
felony, statutory maximum fifteen years): unenhanced sentence of
fifteen years’ state prison as a prison releasee reoffender. 2
The trial court ordered that the unenhanced fifteen-year sentence for
possession of a firearm by a convicted felon be served consecutively to the
ten-year enhanced HVFO sentence for aggravated assault. Pierre’s
judgment and sentences were affirmed on direct appeal, see Pierre v. State,
152 So. 3d 584 (Fla. 3d DCA 2014). In 2021, Pierre filed a motion to correct
illegal sentence under rule 3.800(a)(1). He contended that, once the trial
court designated him a Habitual Violent Felony Offender on Count Three
1
See § 775.084(4)(b), Fla. Stat. (2008) (increasing the statutory maximum
sentence for a third-degree felony committed by a habitual violent felony
offender from five years to “a term of years not exceeding 10, and such
offender shall not be eligible for release for 5 years.”)
2
We note that Pierre was also convicted of and sentenced for another third-
degree felony. However, Pierre does not contest the sentence imposed for
this offense, and limits his challenge to the sentences imposed in Counts
Three and Four.
3
(Aggravated Assault with a Firearm), increasing Pierre’s maximum sentence
from the statutory maximum of five years 3 to an enhanced sentence of ten
years with a five-year mandatory minimum, the trial court was without
authority to order Pierre’s sentence on the remaining count (Count Four,
Possession of a Firearm by a Convicted Felon) be served consecutively,
even though that offense was unenhanced.
ANALYSIS AND DISCUSSION
1. The consecutive sentences do not violate Hale and its progeny
The trial court correctly denied Pierre’s motion because this was a legal
sentence. Pierre’s reliance on Hale,
630 So. 2d at 521, is misplaced. In Hale,
defendant was convicted of two second-degree felonies—sale of cocaine
and possession with intent to sell cocaine. He was designated a habitual
violent felony offender (HVFO) on each offense, thereby increasing his
maximum possible sentence from fifteen years on each count to thirty years
on each count, with a ten-year mandatory minimum for each.
3
See § 775.082(3)(b), Fla. Stat. (2008) (providing generally the maximum
terms of imprisonment for a felony of the first, second or third degree):
- First degree: a term of imprisonment not exceeding 30 years or, when
specifically provided by statute, a term of years not exceeding life
imprisonment;
- Second degree: a term of imprisonment not exceeding 15 years;
- Third degree: a term of imprisonment not exceeding 5 years.
4
The trial court sentenced Hale as an HVFO to two consecutive twenty-
five-year terms, for a total sentence of fifty years. The Florida Supreme
Court held that these sentences, each enhanced under the HVFO statute
beyond their statutory maximum, must be imposed concurrently rather than
consecutively, relying on the language of the habitual offender statute
(section 775.084, Florida Statutes), and quoting from its earlier decision in
Daniels v. State,
595 So. 2d 952 (Fla. 1992), which held that, by enacting
the statutory provisions regarding habitual felony offenders and habitual
violent felony offenders
the legislature intended to provide for the incarceration of repeat
felony offenders for longer periods of time. However, this is
accomplished by enlargement of the maximum sentences that
can be imposed when a defendant is found to be an habitual
felon or an habitual violent felon.
Hale,
630 So. 2d at 524 (quoting Daniels,
595 So. 2d at 953).
The Hale court further explained that the legislative intent of the
habitual offender statutes “is satisfied when the maximum sentence for each
offense is increased. We find nothing in the language of the habitual offender
statute which suggests that the legislature also intended that, once the
sentences from multiple crimes committed during a single criminal
episode have been enhanced through the habitual offender statutes, the
total penalty should then be further increased by ordering that the sentences
5
run consecutively.” Hale,
630 So. 2d at 524 (emphasis added). The Hale
Court then concluded:
[T]he trial court is not authorized ... to both enhance Hale's
sentence as a habitual offender and make each of the
enhanced habitual offender sentences for the possession and
the sale of the same identical piece of cocaine consecutive,
without specific legislative authorization in the habitual offender
statute.
Id. at 525.
In other words, Hale’s holding was limited by its facts to situations in
which two or more sentences are enhanced beyond their statutory
maximum. Hale involved consecutive sentences imposed on two HVFO-
enhanced sentences. The instant case, by contrast, involves consecutive
sentences imposed on one HVFO-enhanced sentence and one unenhanced
sentence. Pierre contends this is a distinction without a difference and that,
if one offense has been enhanced and a sentence imposed in excess of the
statutory maximum pursuant to that enhancement (here, a ten-year HVFO-
enhanced sentence imposed on a third-degree felony), the trial court cannot
legally order that the remaining unenhanced sentence on the second offense
(here, the second-degree felony of possession of a firearm by a convicted
felon) be served consecutively. Instead, Pierre contends, Hale requires it be
served concurrently. We do not agree.
6
There appear to be two components to the relevant analysis: first,
whether the two sentences have each been “enhanced” beyond their
statutory maximum; and second, if both offenses have been enhanced,
whether the applicable enhancement statute, by its terms, authorizes the trial
court to not only enhance the sentences beyond the statutory maximum, but
to order those enhanced sentences be served consecutively. This analysis
is illustrated in Cotto,
139 So. 3d at 283. Cotto was convicted of, inter alia,
aggravated assault with a firearm, possession of a firearm by a convicted
felon, and carrying a concealed firearm. 4 He was sentenced as follows:
- Aggravated assault with a firearm (third-degree felony): Five-year
sentence as a Prison Releasee Reoffender (PRR), section 775.082,
Florida Statutes (2002);
- Possession of a Firearm by a Convicted Felon (second-degree
felony): Thirty-year enhanced sentence as a Habitual Felony
Offender (HFO), with a ten-year mandatory minimum pursuant to
the 10/20/Life statute (section 775.087(2)(a), Florida Statutes
(2002)).
The trial court ordered that the thirty-year HFO-enhanced sentence be
served consecutively to the five-year PRR sentence. Cotto challenged these
4
Although Cotto was sentenced on this third offense, the sentence for that
offense is not relevant and has no impact on the issue addressed here. For
the sake of clarity it is therefore excluded from the discussion and analysis.
7
consecutive sentences as illegal. The Florida Supreme Court analyzed, first,
whether the five-year mandatory sentence as a PRR for a third-degree felony
constituted an “enhanced” sentence and, second, whether the language of
the PRR statute authorized consecutive sentences.
Although the court analyzed both issues, it needed to address only the
first component, in which the court concluded that the mandatory five-year
PRR sentence did not constitute an “enhanced” sentence. The reason for
this conclusion was simple: The maximum statutory sentence for a person
convicted of a third-degree felony is five years. The maximum possible
sentence on a third-degree felony for a defendant designated as a PRR is
the same—five years. Unlike the HFO/HVFO statutes, the PRR statute does
not “enhance” (i.e., increase or lengthen) the maximum possible sentence
beyond the existing statutory maximum.
Instead, what the PRR statute does is remove all sentencing discretion
from the trial judge: if a person qualifies as a Prison Releasee Reoffender,
the trial court is required to impose the statutory maximum term of
imprisonment (in this case, five years). 5 A PRR sentence is thus not an
5
The PRR statute also provides:
A person sentenced under paragraph (a) shall be released only
by expiration of sentence and shall not be eligible for parole,
control release, or any form of early release. Any person
8
“enhanced” sentence as that term is applied in Hale and its progeny,
because it does not lengthen or increase the existing statutory maximum for
that offense. As the Cotto court observed: “The PRR statute is a mandatory
minimum provision that creates a sentencing floor” and by contrast, the
HFO/HVFO statute “allows courts to sentence a defendant who qualifies. . .
to an extended term of imprisonment.” Cotto,
139 So. 3d at 287. Cotto held
that “the HFO and HVFO provisions are enhancements to which Hale
applies,” but that a sentence imposed under the PRR statute is an
unenhanced sentence:
The PRR statute does not increase the maximum period of
incarceration to which a person may be sentenced. Rather,
under the PRR statute, only the maximum allowable sentence
may be imposed. We are unwilling to extend Hale to apply to
unenhanced sentences.
Id. at 289 (emphasis added).
Although the Cotto opinion followed this with an analysis of legislative
intent under the language of the PRR statute, that analysis is unnecessary
here. Cotto held that where a defendant is convicted of two offenses arising
from a single criminal episode, and the trial court imposes an enhanced
sentenced under paragraph (a) must serve 100 percent of the
court-imposed sentence.
§ 775.082(9)(b), Fla. Stat. (2023).
9
sentence beyond the statutory maximum on one count and an unenhanced
sentence on the remaining count, the trial court may lawfully require the
defendant to serve those sentences consecutively.
In like fashion, the trial court here imposed an enhanced sentence (ten
years as an HVFO for a third-degree felony) to be followed by a consecutive
unenhanced sentence (fifteen years for a second-degree felony). Cotto is
thus fully applicable here because, as the Cotto court stated: “We are
unwilling to extend Hale to apply to unenhanced sentences.” Id. at 289. 6
We note that the Second and Fifth Districts have held this type of
consecutive sentencing is permitted under Hale and Cotto. See Thomas v.
State, 47 Fla. L. Weekly D2482 (Fla. 2d DCA November 30, 2022) (en banc)
(receding from prior panel decisions and holding that Cotto permits an
enhanced habitual offender sentence to be imposed consecutively with an
unenhanced sentences arising from the same criminal episode); Pinkard v.
State,
185 So. 3d 1289, 1290 (Fla. 5th DCA 2016) (defendant sentenced to
serve two enhanced sentences concurrently, and a third unenhanced
6
In Knight v. State,
159 So. 3d 943 (Fla. 3d DCA 2015) the trial court
imposed an unenhanced sentence of fifteen years for manslaughter (a
second-degree felony) followed by an enhanced sentence of twenty-five
years for aggravated battery (a second-degree felony) enhanced pursuant
to the 10/20/Life statute (775.087(2), Fla. Stat. (2003)). We held without
discussion, but relying on Cotto, that a “standard sentence and an enhanced
sentence may be imposed consecutively.”
Id. at 944.
10
sentence to be served consecutively; district court affirmed imposition of a
consecutive unenhanced sentence, noting “the Florida Supreme Court held
that it was ‘unwilling to extend Hale to apply to unenhanced sentences.’”)
(quoting Cotto,
139 So. 3d at 289).
We acknowledge there are decisions of the First District which at first
blush may appear to conflict with our holding on this question. See, e.g.,
Kiedrowski v. State,
876 So. 2d 692, 694 (Fla. 1st DCA 2004) (defendant
sentenced on two third-degree felonies; each offense was subject to
enhancement as an HFO; however, the trial court ultimately designated
defendant an HFO on only one of the two qualifying offenses, imposed an
enhanced sentence of ten years on that offense, to be followed by a
consecutive unenhanced sentence of two years on the remaining offense;
First District vacated the twelve-year sentence, holding it violated “the
reasoning and the spirit of Hale” where the total sentence imposed exceeded
the ten-year total defendant could have received as a habitual felony
offender); Mills v. State,
23 So. 3d 186, 188 (Fla. 1st DCA 2009) (holding no
Hale violation where trial court imposed an HFO-enhanced sentence of 10
years (for a third-degree felony) followed by a consecutive unenhanced
sentence of 15 years (for a second-degree felony), for a total sentence of 25
years; distinguishing Kiedrowski and reasoning that, because Mills’
11
aggregate sentence of 25 years was less than the 30 years he could have
received if both of his sentences had been enhanced and ordered to run
concurrently, it did not violate Hale; concluding: “We hold that the sentences
in this case are legal, as they do not violate Hale. Pursuant to the reasoning
of Kiedrowski and Hamilton, consecutive HFO and non-HFO sentences
imposed for crimes committed during a single criminal episode are legal if
the aggregate sentence is less than that which could have been imposed if
all HFO eligible convictions had been enhanced and ordered to run
concurrently”) (emphasis added); Hamilton v. State,
996 So. 2d 964, 966
(Fla. 1st DCA 2008) (“Because appellant's sentences do not, in the
aggregate, exceed the maximum he could have received if all sentences
subject to enhancement under the habitual felony offender statute had
been enhanced (but run concurrently) . . . he is not entitled to relief”).
It appears that Mills, Hamilton and Kiedrowski are intended to avoid
the anomalous situation where a defendant is charged with multiple
HFO/HVFO-eligible crimes, but the trial court chooses to designate a
defendant as an HFO/HVFO on only one of the qualifying offenses, thus
allowing for consecutive sentencing that exceeds the maximum concurrent
sentencing required under Hale had the trial court sentenced defendant as
an HFO/HVFO on all qualifying offenses.
12
For example, assume a defendant is charged with two second-degree
felonies (statutory maximum of fifteen years each), each of which qualifies
for enhancement as an HFO (increasing the maximum sentence for each
offense to thirty years). If the trial court designated the defendant an HFO on
both offenses, the court could impose a sentence of thirty years for each
offense, but under Hale, those two HFO-enhanced sentences would have to
be served concurrently. However, if the trial court designated defendant as
an HFO on only one of the two HFO-eligible offenses, it could impose a thirty-
year HFO sentence, followed by a consecutive fifteen-year “enhanceable-
but-unenhanced” sentence on the remaining offense, for an aggregate
sentence of forty-five years.
The instant case is thus distinguishable from Mills, Hamilton and
Kiedrowski, as they involved defendants charged with two or more
“enhanceable” offenses, meaning that two or more offenses qualified under
the HFO/HVFO statute for enhancement beyond the statutory maximum, but
the trial court chose to sentence the defendant as an HFO/HVFO on only
one of those enhanceable offenses, and then ordered the sentences to be
served consecutively.
By contrast, the instant case involves a defendant who has only one
enhanceable offense and one “unenhanceable” offense. Pursuant to Cotto,
13
the consecutive sentences imposed on Pierre are legal, and the First
District’s holdings in Mills, Hamilton and Kiedrowski are distinguishable and
do not expressly and directly conflict with our holding.
2. The Written Sentence Fails to Conform to the Oral
Pronouncement
As to Pierre’s second claim, we reverse that portion of the order which
denied Pierre’s motion to correct the written sentence to conform to the oral
pronouncement as to the possession of a firearm by a convicted felon count
(designated Count Four in the written sentence), and remand for entry of a
corrected sentence. The written sentence reflects that, as to Count Four,
the trial court designated defendant a Habitual Violent Felony Offender.
However, and as the State properly concedes, the trial court’s oral
pronouncement of sentence did not include such a designation for that count.
As a general rule (fully applicable here), where the oral pronouncement
conflicts with the written sentence, the oral pronouncement controls. See
Ashley v. State,
850 So. 2d 1265 (Fla. 2003); Martin v. State,
238 So. 3d 369
(Fla. 3d DCA 2017). We therefore reverse that portion of the order denying
the motion to correct illegal sentence and remand to the trial court for the
limited purpose of correcting the written sentence in Count Four to comport
with the oral pronouncement by removing the Habitual Violent Felony
14
Offender designation from that count. The order on appeal is otherwise
affirmed.
CONCLUSION
We affirm that portion of the trial court’s order which found the
consecutive sentences imposed on Counts Three and Four were not illegal
under Hale. We hold that where a defendant is convicted of two offenses
arising out of a single criminal episode, one of which is enhanceable under
the habitual felony offender/habitual violent felony offender statute, and the
sentence for that offense is enhanced beyond the statutory maximum, the
trial court may lawfully order that the sentence on the remaining unenhanced
offense be served consecutively.
We reverse that portion of the order which denied Pierre’s motion to
correct the written sentence on Count Four and remand for entry of a
corrected sentence that conforms to the oral pronouncement.
Affirmed in part, reversed in part and remanded with directions.
15
