Summary
reversing on concession of error a sentence for count 2 in which a portion of the sentence ran consecutively to count 1 and the remainder ran concurrently with count 1, relying on Rozmestor v. State , 381 So.2d 324 (Fla. 5th DCA 1980)
Summary of this case from Billups v. StateOpinion
Case No. 96-2534
Opinion filed June 25, 1997
Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Martin County; John E. Fennelly, Judge; L.T. Case No. 95-857-CFA.
Richard L. Jorandby, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
Robert A. Butterworth, Attorney General, Tallahassee, and Denise S. Calegan, Assistant Attorney General, West Palm Beach, for appellee.
Appellant was sentenced on his plea of no contest to two counts of DUI manslaughter, leaving the scene of an accident involving death, and DUI with serious bodily injury. He argues that it was error for a portion of his 15-year prison sentence on the second count of DUI manslaughter to run consecutively to count I, while the remainder ran concurrently. We reverse.
The oral pronouncement was that 9.2 years of the 15 years would be consecutive; however, the written sentence says 8.86 years. Because of our reversal, this discrepancy becomes moot.
The state concedes and we agree that under the authority ofRozmestor v. State, 381 So.2d 324 (Fla. 5th DCA 1980), such a sentence is erroneous. The parties dispute, however, whether or not the trial court may impose anything other than a concurrent sentence on remand. We decline to address this issue in advance of the trial court's resentencing, as it would be premature.
GUNTHER, C.J., and FARMER, J., concur.