Opinion
Case No. 5D19-2637
01-17-2020
Oscar W. THOMAS, Appellant, v. STATE of Florida, Appellee.
Oscar W. Thomas, Orlando, pro se. Ashley Moody, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.
Oscar W. Thomas, Orlando, pro se.
Ashley Moody, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.
LAMBERT, J.
In June 2002, Appellant, Oscar W. Thomas, was sentenced to prison by the trial court in three separate cases as follows:
1. Case No. 2001-CF-10157 – twenty-eight years for trafficking in 28 grams or more of cocaine, with a three-year mandatory minimum provision;
2. Case No. 2002-CF-1118 – twenty-eight years on each of the two charged counts of robbery with a firearm, with each sentence including a ten-year mandatory minimum; and
3. Case No. 2002-CF-3804 – twenty-eight years for robbery with a firearm with a ten-year mandatory minimum provision and twenty-eight years for aggravated assault with a firearm, with a three-year mandatory minimum provision.
The court ordered each of the twenty-eight year prison sentences to run concurrently. It further ordered that the two ten-year mandatory minimum sentences in Case No. 2002-CF-1118 be served concurrently. It also orally pronounced that the three-year mandatory minimum sentence provision for the aggravated assault with a firearm conviction in Case No. 2002-CF-3804 was to run concurrently with the three-year mandatory minimum provision of the trafficking in cocaine sentence in Case No. 2001-CF-10157. The court otherwise ordered that the mandatory minimum provisions in each case run consecutively. Thus, and as additionally expressly stated by the court at the sentencing hearing, the intent of its sentencing structure was that Thomas serve twenty-eight years in prison, with twenty-three years being served as a mandatory minimum sentence.
The written judgments and sentences attached to the postconviction court's order appear to conflict with the trial court's oral pronouncement of the sentences. Thomas candidly conceded in his initial brief that he was sentenced to twenty-eight years' imprisonment, with twenty-three of those years being subject to mandatory minimum sentencing sanctions, and that the oral pronouncement of his sentences controls. See Spatcher v. State , 228 So. 3d 1162, 1163–64 (Fla. 1st DCA 2017) (recognizing that oral pronouncement of sentence controls over written sentencing documents, whether it helps or hurts a defendant).
The present appeal challenges the trial court's order on Thomas's motion to correct illegal sentence filed under Florida Rule of Criminal Procedure 3.800(a) in August 2019. Thomas raised two grounds for relief. First, he asserted that his twenty-eight year prison sentence for the aggravated assault with a firearm conviction in Case No. 2002-CF-3804 exceeded the statutory maximum of five years for a third-degree felony. The postconviction court granted this aspect of the motion and ordered that the sentence be corrected.
As a result, Thomas's now-corrected five-year concurrent prison sentence on this count, together with its concomitant three-year mandatory minimum provision that was ordered to be served concurrently with the three-year mandatory minimum provision of the trafficking in cocaine sentence in Case No. 2001-CF-10157, has now been served. Our record, however, does not indicate whether the postconviction court has subsequently entered this corrected judgment and sentence in Case No. 2012-CF-3804 on this conviction.
Thomas's second claim for relief in his motion argued that his overall sentencing scheme is illegal because it requires that he serves portions of his various sentences both concurrently and consecutively, in violation of what he asserted is this court's precedent against a defendant serving fragmented or interrupted sentences. In denying this claim, the postconviction court cited to the First District Court's opinion in Bell v. State , 597 So. 2d 861, 862 (Fla. 1st DCA 1992), in which the court held that "[t]he pronouncement of consecutive minimum mandatory sentences within otherwise concurrent sentences has been approved, so long as the offenses giving rise to the mandatory minimum terms arose from separate and distinct criminal episodes."
On appeal, Thomas does not contest the legality of the respective twenty-eight year concurrent prison sentences or that his crimes were committed during separate criminal episodes. Instead, he challenges the trial court applying the mandatory minimum provisions of these sentences and running them consecutively to each other and the underlying concurrent sentences in his latter two cases in the manner previously described. Our review of the denial of a motion to correct an illegal sentence is de novo. Williams v. State , 235 So. 3d 962, 963 (Fla. 5th DCA 2017).
Thomas argues that the postconviction court erred in failing to apply this court's earlier decisions in Preyer v. State , 575 So. 2d 748 (Fla. 5th DCA 1991) ; Drew v. State , 478 So. 2d 69 (Fla. 5th DCA 1985) ; and Rozmestor v. State , 381 So. 2d 324 (Fla. 5th DCA 1980), which he contends bar this type of sentencing structure for being violative of section 921.16, Florida Statutes (2001). In pertinent part, this statute provides that "[s]entences of imprisonment for offenses not charged in the same indictment, information, or affidavit shall be served consecutively unless the court directs that two or more of the sentences be served concurrently." § 921.16(1), Fla. Stat. (2001). Thus, Thomas asserts that, under Rozmestor , Preyer , and Drew , a trial court may impose either concurrent sentences or consecutive sentences, but it may not impose sentences that are partly concurrent and partly consecutive to other sentences, as was done in his cases. Because Thomas's underlying twenty-eight year prison sentences run concurrently with each other, but, as previously outlined, the ten-year mandatory minimum sentence provisions in Case Nos. 2002-CF-1118 and 2002-CF-3804 do not begin to run until sometime after he begins serving the underlying concurrent twenty-eight year sentences in those cases, Thomas reasons that this fragmented concurrent and consecutive sentence structure causes his sentences to be illegal.
The premise behind Thomas's argument is that "a prisoner is entitled to pay his debt to society in one stretch, not in bits and pieces." Segal v. Wainwright , 304 So. 2d 446, 448 (Fla. 1974). As we explain more fully below, Thomas is not serving his sentences "in bits and pieces," and his reliance on this court's decisions in Rozmestor , Preyer , and Drew is misplaced. Simply put, the illegality in the sentencing structures described in Rozmestor , Preyer , and Drew resulted from there being definitive breaks in the defendants' sentences in those cases such that each defendant could not continuously serve his complete sentence in one stretch. In contrast, Thomas is serving the concurrent and consecutive portion of each sentence in each of his cases in one continuous stretch.
Addressing each of our decisions upon which Thomas relies, we begin with Rozmestor . In that case, the defendant was sentenced to serve four years in prison, with the first two years to be served concurrently with a lengthier sentence that he was serving in an unrelated case. 381 So. 2d at 325. The trial court further ordered that the last two years of the defendant's four-year sentence would be served following the conclusion of his sentence in the other case. Id. We concluded that this interruption in the defendant's sentence after two years improperly caused him not to be able to serve his four-year sentence continuously. Id. at 326. We vacated the sentence and remanded for resentencing. Id.
Next, in Preyer , the defendant was sentenced to serve five and one-half years in prison on one count and to a concurrent four and one-half years' imprisonment on the second count. 575 So. 2d at 749. However, the trial court added an additional six months to the sentence for count two, and further ordered that these six months were to be served consecutively to the defendant's prison sentence in count one. Id. Thus, the defendant actually received a five-year sentence on count two, with the first four and one-half years to be served continuously, followed by a break in the sentence so the defendant could complete his sentence in count one, before resuming and thereafter serving the last six months of his sentence in count two. Id. at 750. We held that, under Rozmestor , this break in count two's sentence was improper and remanded for the trial court to impose a continuous sentence, "rather than ... a sentence to be served in bits and pieces." Id.
Lastly, in Drew , the trial court imposed concurrent fifteen-year prison sentences in three cases, with each sentence also containing a three-year mandatory minimum provision. 478 So. 2d at 69. The court also ordered that the mandatory minimum sentences imposed in each case run consecutively, but did so in a fashion that the mandatory minimum portion of the sentences imposed by it in the second and third cases would not begin to run until the defendant had completed his entire fifteen-year prison sentence in his first case. Id. We held that this fragmentation of the three-year mandatory provisions in the second and third cases resulted in the defendant serving those aspects of the sentences separate and apart from the balance of the underlying concurrent sentences in those two cases, thus violating the prohibition against "serving parts of sentences sandwiched between chunks of other sentences." Id. at 70.
In arguing that the aforementioned precedent from this court compels reversal, Thomas has failed to address our decision in Rodriguez v. State , 436 So. 2d 297 (Fla. 5th DCA 1983), which affirmed a sentencing structure very similar to the present case. In Rodriguez , which was issued some three years after Rozmestor , the defendant was sentenced to serve fifteen years' imprisonment on two counts and to twenty-five years in prison on a third count, with these sentences running concurrently. Id. at 298 & n.1. Each sentence also contained a three-year mandatory minimum provision. Id. at 298 n.1. The court ordered that these mandatory minimums run consecutively to each other, resulting in an aggregate mandatory minimum sentence structure of nine years. Id. at 298.
Rodriguez raised the same argument for relief that Thomas raises here. Specifically, he asserted that, pursuant to Rozmestor , his sentencing structure was illegal under section 921.16, because he could only "be required to serve his sentence either concurrently in full, or consecutively in full, with the other sentences, or [any one] of them, but not broken up in such a manner that a portion of the sentence is consecutive while another portion is concurrent in nature." Id.
We rejected this argument and affirmed the legality of the sentences. Id. at 299. Pertinent here, our court determined that each of the prison sentences Rodriguez was serving, including the respective mandatory minimum provisions, ran continuously and, secondly, that none of his sentences extended beyond the statutory maximum term. Id. Stated differently, the consecutive nine years of mandatory minimum sentencing was completely subsumed within each lengthier and underlying concurrent prison sentence.
Subsequently to our decision in Rodriguez , two of our sister courts affirmed the legality of sentences structured similarly to those imposed in the present appeal. In Gladden v. State , 556 So. 2d 1228 (Fla. 4th DCA 1990), the defendant was sentenced in one case to concurrent twelve years' imprisonment on each count, with concurrent three-year mandatory minimum provisions. Id. at 1229. In his second case, the defendant was also sentenced to concurrent terms of twelve years in prison on each count, with concurrent three-year mandatory minimums. Id. The court, however, ran the mandatory minimum terms in each case consecutively to the other, resulting in the defendant serving twelve years in prison concurrently on both cases, with six of those twelve years also being served as a mandatory minimum. Id.
Gladden argued that, under Drew , the sentence structure requiring him to serve a portion of his sentences in each case concurrently and a portion of his sentences consecutively was illegal. Id. at 1229–30. The Fourth District Court disagreed, concluding that the consecutive mandatory minimum portions of the defendant's sentences would all be served during the term of the underlying concurrent sentence; thus, his sentences were not improperly fragmented. Id. at 1230. The court further noted that the fatal flaw in Drew of two of the consecutive mandatory minimum sentences not beginning to run until after the defendant had completed the entire term of imprisonment in his first case was not present. Id.
In Campbell v. State , 588 So. 2d 1047 (Fla. 2d DCA 1991), the Second District Court reached a similar result. The defendant was adjudicated guilty of armed robbery in five separate cases. Id. at 1048. He received a twenty-year prison sentence on each of these convictions, with the sentences running concurrently. Id. Each twenty-year sentence also contained a three-year mandatory minimum provision, which the trial court ran consecutively to each other. Id. Much like the defendant in Gladden and the instant case, Campbell argued that because one portion of each sentence was running concurrently, yet the mandatory minimum portion of each sentence was running consecutively to the other, the prohibition in Drew against the fragmentation of sentences was being violated. Id.
The Second District Court disagreed. The court found the case differed significantly from the circumstances in Drew because the defendant's aggregate, consecutive fifteen years of mandatory minimum time was fully embodied within the underlying concurrent twenty-year sentences imposed and, secondly, unlike in Drew , the consecutive mandatory minimum sentences did not tack on at the end of another completed sentence. Id. at 1049.
Thomas's sentence structure in his three cases below is essentially indistinguishable from those sentence structures determined in Rodriguez , Bell , Campbell , and Gladden to be legal. Simply stated, Thomas is not serving any of his sentences in "bits and pieces." Rather, his consecutive twenty-three years of mandatory minimum time is completely embodied within the concurrent twenty-eight year prison sentences that he is presently serving in each of his cases. Thus, Thomas's respective prison sentences are each being served in one continuous stretch and do not violate the rule against fragmented sentences outlined in Rozmestor , Preyer , and Drew .
AFFIRMED.
ORFINGER and EISNAUGLE, JJ., concur.