Opinion
No. 2D21-2009
05-06-2022
Stevie GARNER, Appellant, v. STATE of Florida, Appellee.
Daniel J. Tibbitt of Law Offices of Daniel J. Tibbitt, Miami, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.
Daniel J. Tibbitt of Law Offices of Daniel J. Tibbitt, Miami, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellee.
KHOUZAM, Judge.
Stevie Garner appeals the order denying his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because Garner's general sentence was illegal, we reverse the denial of claim two of his motion. We affirm in all other respects.
In 1998, Garner was charged with first-degree murder (count one), burglary with assault or battery (count two), and grand theft (count three). After the State announced that it would seek the death penalty, Garner entered into a negotiated plea agreement, agreeing to plead guilty to all counts in exchange for a sentence of life in prison on count one and guidelines sentences on counts two and three. However, the trial court ultimately imposed a general sentence of life in prison on counts one and two as well as a concurrent term of five years in prison on count three.
In February 2021, Garner filed a motion to correct illegal sentence. In claim two of his motion, he argued that the general sentence on counts one and two was illegal and that he is entitled to distinct sentences for each individual count. The postconviction court rejected this claim and denied Garner's motion.
But a general sentence covering multiple counts is an illegal sentence. See Munoz v. State , 218 So. 3d 459, 459 (Fla. 5th DCA 2017) ("The sentence on all the counts is an illegal general sentence."); Holmes v. State , 100 So. 3d 281, 283 (Fla. 3d DCA 2012) (reversing denial of claim asserting illegal sentence because "a trial court may not impose a single general sentence to cover multiple counts"); Brazley v. State , 871 So. 2d 986, 987 (Fla. 3d DCA 2004) (accepting State's concession that sentence was illegal due to prohibition on "general sentences for multiple convictions"). The appropriate remedy for an illegal general sentence is "a vacation of the general sentence and entry of a separate, distinct sentence for each of the individual counts." Holmes , 100 So. 3d at 283 ; see Fla. R. Crim. P. 3.701(d)(12) ("A sentence must be imposed for each offense.").
Accordingly, we reverse the portion of the order denying claim two of Garner's rule 3.800(a) motion and remand for the postconviction court to vacate the original general sentence and enter separate, distinct sentences for counts one and two. See Holmes, 100 So. 3d at 283 ; Brazley , 871 So. 2d at 987.
Affirmed in part, reversed in part, and remanded with instructions.
LaROSE and SLEET, JJ., Concur.