Opinion
No. 98-629
Opinion filed August 26, 1998. JULY TERM, A.D. 1998
An appeal from the Circuit Court of Dade County, Michael A. Genden, Judge. L.T. No. 92-20576
Jose Eustaquio Diego, in proper person.
Robert A. Butterworth, Attorney General, and Roberta G. Mandel, Assistant Attorney General, for appellee.
Before COPE, FLETCHER, and SORONDO, JJ.
ON MOTION FOR REHEARING
We grant the motion for rehearing filed by the appellant, vacate and withdraw the opinion issued in this case on April 8, 1998, and substitute the following opinion for it.
We affirm the trial court's order denying the appellant's motion for post-conviction relief in all respects except one. We find that the motion should have been granted with respect to appellant's sentencing error point because it is clear that all of the crimes for which appellant was convicted were a part of one criminal episode. Therefore, the forty-year sentences entered on the armed burglary and kidnapping charges should have been ordered to run concurrently with, rather than consecutive to, the life sentences entered on the armed robbery convictions. See Hale v. State, 630 So.2d 521 (Fla. 1993); State v. Ames, 467 So.2d 994 (Fla. 1985); Junco v. State, 510 So.2d 909 (Fla. 3d DCA 1987). By failing to object to the consecutive sentencing under these circumstances and thus preserve the error for review, appellant's trial attorney provided ineffective assistance of counsel and the trial court erred in ruling that this sentencing point was waived because not raised on direct appeal.
The case is reversed and remanded to the trial court with directions to resentence the appellant in accordance with this opinion.