A court may not impose sentence for an offense unless the offense is before the court for sentencing. The matter of whether an offense is, or is not, pending before the court for sentencing often leads to considerable debate. As a general rule, an offense should not be considered as "pending" before the trial court for sentencing unless a verdict of guilt or a plea of guilty or nolo contendere has been obtained; offenses for which the defendant has entered a not guilty plea or denial, and is awaiting trial or a final hearing, are not considered pending for sentencing purposes.(1) One scoresheet must be used for every pending case that meets this definition.(2) As a corollary, a presumption then arises that sentencing should not be delayed merely because other cases that fail to meet this definition are pending against the same defendant in the same court.(3) In other words, a judge does not have to wait for disposition of a pending case before imposing sentence in a case that has been resolved by plea or trial.(4)
A broad exception to this rule is that defendants are allowed to move a trial court to delay sentencing so that a single scoresheet can be used in two or more cases pending against the same defendant in the same court at the same time, regardless of whether a plea of guilty or nolo contendere or a conviction has been obtained. The trial court must grant the motion when the defendant can show that the use of a single scoresheet would not result in an unreasonable delay in sentencing. For each sentence that would not be unreasonably delayed, the trial court must order simultaneous sentencing.(5) There is, however, no requirement that a trial court delay sentencing on a completed case while awaiting the outcome of future trials where it is only speculative that those other cases might be ready for disposition soon and where those cases in fact might not be ready for disposition for many months or years.(6)
In combined proceedings, such as where the defendant has a new offense that is also the basis of a violation of probation, the discretion of the court is quite limited. A judge must, when he or she knows that both the offense underlying the probation and the new charge which forms the basis for the violation of probation would be pending (or would be pending shortly) before the court for sentencing, impose sentence on the basis of a single scoresheet that includes the violation of probation and the new open offense and may not split the two and sentence them using separate scoresheets.(7) This also means that a trial court may not engage in sentence manipulation through the use of separate scoresheets to impose an illegal departure or alternative sentence in derogation of the sentencing guidelines or the Criminal Punishment Code(8) for, as the Florida Supreme Court has often made clear, only when the legislature expressly authorizes sentencing outside the guidelines or Criminal Punishment Code may a court do so(9) and sentencing alternatives should not be used to thwart sentencing guidelines or the Criminal Punishment Code.(10)
The burden falls on the defendant to request simultaneous sentencing when one or more of the offenses do not meet the "pending for sentencing" definition. Otherwise, it is the trial court’s burden to assure that all of a defendant’s cases pending for sentencing in a particular county at the time of the defendant’s first sentencing hearing are disposed of using one scoresheet.(11) The defendant has the burden to move a trial court to delay sentencing so that a single scoresheet can be used in two or more cases pending against the same defendant in the same court at the same time, regardless of whether a plea of guilty or nolo contendere or a conviction has been obtained, although the State normally seeks consolidated sentencing of all pending charges. The trial court must grant the motion and order simultaneous sentencing when the defendant can show that the use of a single scoresheet would not result in an unreasonable delay in sentencing.(12) An example would be where the defendant enters an admission to a violation of probation (VOP) and asks that the court not sentence him or her until a verdict is obtained in an upcoming trial on an unrelated charge.(13) Failure of the defense to seek consolidated sentencing where the defendant’s total overall sentence would be shorter will result in reversal of the sentence for ineffective assistance of counsel.(14)
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1. Clark v. State, 572 So. 2d 1387 (Fla. 1991); see, Nelson v. State, 498 So. 2d 553 (Fla. Dist. Ct. App. 4th Dist. 1986).
2. Fla. R. Crim. P. 3.704(d)(2).
3. Fla. R. Crim. P. 3.720.
4. Jacobs v. State, 533 So. 2d 911 (Fla. Dist. Ct. App. 2d Dist. 1988); Parrish v. State, 527 So. 2d 926 (Fla. Dist. Ct. App. 2d Dist. 1988).
5. Clark v. State, 572 So. 2d 1387 (Fla. 1991).
6. Clark v. State, 572 So. 2d 1387 (Fla. 1991); Parrish v. State, 527 So. 2d 926 (Fla. Dist. Ct. App. 2d Dist. 1988).
7. Gonzalez v. State, 821 So. 2d 1194 (Fla. Dist. Ct. App. 3d Dist. 2002); Joyce v. State, 586 So. 2d 456 (Fla. Dist. Ct. App. 2d Dist. 1991); Bembow v. State, 520 So. 2d 312 (Fla. Dist. Ct. App. 2d Dist. 1988); Render v. State, 516 So. 2d 1085 (Fla. Dist. Ct. App. 2d Dist. 1987) ("[T]he spirit of [Rule 3.701(d)(1)] would be defeated by allowing separate sentencing based on separate scoresheets where . . . the sentences are imposed in the same day in combined proceedings"), approved by, Clark v. State, 572 So. 2d 1387 (Fla. 1991).
8. See, Vileta v. State, 454 So. 2d 792 (Fla. Dist. Ct. App. 2d Dist. 1984).
9. See, Disbrow v. State, 642 So. 2d 740, 741 (Fla. 1994) at 741.
10. See, Jones v. State, 813 So. 2d 22 (Fla. 2002); Disbrow v. State, 642 So. 2d 740, 741 (Fla. 1994); Poore v. State, 531 So. 2d 161, 165 (Fla. 1988); see also King v. State, 648 So. 2d 183, 190 (Fla. Dist. Ct. App. 1st Dist. 1994), quashed on other grounds, 681 So. 2d 1136 (Fla. 1996).
11. Snouffer v. State, 684 So. 2d 247 (Fla. Dist. Ct. App. 2d Dist. 1996).
12. Clark v. State, 572 So. 2d 1387 (Fla. 1981); see also, Foster v. State, 576 So. 2d 937 (Fla. Dist. Ct. App. 5th Dist. 1991), wherein it was observed:
"The Clark court has, by permitting the defendant (at his option) to require a continuance so that multiple offenses charged in different informations eventually come before a sentencing court at or about the same time, converted the language of the rule to merely mean "pending before the court" and has eliminated the limiting language "for sentencing." The original wording of the rule at least encouraged the defendant to consolidate his charges for simultaneous disposition in order to get the benefit of a single scoresheet: the "new" rule eliminates this incentive. Further, any rule that gives the defendant a free ride after his initial conviction for all additional crimes in the hopper makes crimes, like donuts, cheaper by the dozen. While this is a good marketing device to increase the sales of donuts, its value in discouraging multiple crimes is suspect." (Harris, J., concurring specially).
13. See, Gallagher v. State, 476 So. 2d 754 (Fla. Dist. Ct. App. 5th Dist. 1985).
14. Gonzalez v. State, 821 So. 2d 1194 (Fla. Dist. Ct. App. 3d Dist. 2002); State v. Williams, 624 So. 2d 407 (Fla. Dist. Ct. App. 2d Dist. 1993).
A broad exception to this rule is that defendants are allowed to move a trial court to delay sentencing so that a single scoresheet can be used in two or more cases pending against the same defendant in the same court at the same time, regardless of whether a plea of guilty or nolo contendere or a conviction has been obtained. The trial court must grant the motion when the defendant can show that the use of a single scoresheet would not result in an unreasonable delay in sentencing. For each sentence that would not be unreasonably delayed, the trial court must order simultaneous sentencing.(5) There is, however, no requirement that a trial court delay sentencing on a completed case while awaiting the outcome of future trials where it is only speculative that those other cases might be ready for disposition soon and where those cases in fact might not be ready for disposition for many months or years.(6)
In combined proceedings, such as where the defendant has a new offense that is also the basis of a violation of probation, the discretion of the court is quite limited. A judge must, when he or she knows that both the offense underlying the probation and the new charge which forms the basis for the violation of probation would be pending (or would be pending shortly) before the court for sentencing, impose sentence on the basis of a single scoresheet that includes the violation of probation and the new open offense and may not split the two and sentence them using separate scoresheets.(7) This also means that a trial court may not engage in sentence manipulation through the use of separate scoresheets to impose an illegal departure or alternative sentence in derogation of the sentencing guidelines or the Criminal Punishment Code(8) for, as the Florida Supreme Court has often made clear, only when the legislature expressly authorizes sentencing outside the guidelines or Criminal Punishment Code may a court do so(9) and sentencing alternatives should not be used to thwart sentencing guidelines or the Criminal Punishment Code.(10)
The burden falls on the defendant to request simultaneous sentencing when one or more of the offenses do not meet the "pending for sentencing" definition. Otherwise, it is the trial court’s burden to assure that all of a defendant’s cases pending for sentencing in a particular county at the time of the defendant’s first sentencing hearing are disposed of using one scoresheet.(11) The defendant has the burden to move a trial court to delay sentencing so that a single scoresheet can be used in two or more cases pending against the same defendant in the same court at the same time, regardless of whether a plea of guilty or nolo contendere or a conviction has been obtained, although the State normally seeks consolidated sentencing of all pending charges. The trial court must grant the motion and order simultaneous sentencing when the defendant can show that the use of a single scoresheet would not result in an unreasonable delay in sentencing.(12) An example would be where the defendant enters an admission to a violation of probation (VOP) and asks that the court not sentence him or her until a verdict is obtained in an upcoming trial on an unrelated charge.(13) Failure of the defense to seek consolidated sentencing where the defendant’s total overall sentence would be shorter will result in reversal of the sentence for ineffective assistance of counsel.(14)
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1. Clark v. State, 572 So. 2d 1387 (Fla. 1991); see, Nelson v. State, 498 So. 2d 553 (Fla. Dist. Ct. App. 4th Dist. 1986).
2. Fla. R. Crim. P. 3.704(d)(2).
3. Fla. R. Crim. P. 3.720.
4. Jacobs v. State, 533 So. 2d 911 (Fla. Dist. Ct. App. 2d Dist. 1988); Parrish v. State, 527 So. 2d 926 (Fla. Dist. Ct. App. 2d Dist. 1988).
5. Clark v. State, 572 So. 2d 1387 (Fla. 1991).
6. Clark v. State, 572 So. 2d 1387 (Fla. 1991); Parrish v. State, 527 So. 2d 926 (Fla. Dist. Ct. App. 2d Dist. 1988).
7. Gonzalez v. State, 821 So. 2d 1194 (Fla. Dist. Ct. App. 3d Dist. 2002); Joyce v. State, 586 So. 2d 456 (Fla. Dist. Ct. App. 2d Dist. 1991); Bembow v. State, 520 So. 2d 312 (Fla. Dist. Ct. App. 2d Dist. 1988); Render v. State, 516 So. 2d 1085 (Fla. Dist. Ct. App. 2d Dist. 1987) ("[T]he spirit of [Rule 3.701(d)(1)] would be defeated by allowing separate sentencing based on separate scoresheets where . . . the sentences are imposed in the same day in combined proceedings"), approved by, Clark v. State, 572 So. 2d 1387 (Fla. 1991).
8. See, Vileta v. State, 454 So. 2d 792 (Fla. Dist. Ct. App. 2d Dist. 1984).
9. See, Disbrow v. State, 642 So. 2d 740, 741 (Fla. 1994) at 741.
10. See, Jones v. State, 813 So. 2d 22 (Fla. 2002); Disbrow v. State, 642 So. 2d 740, 741 (Fla. 1994); Poore v. State, 531 So. 2d 161, 165 (Fla. 1988); see also King v. State, 648 So. 2d 183, 190 (Fla. Dist. Ct. App. 1st Dist. 1994), quashed on other grounds, 681 So. 2d 1136 (Fla. 1996).
11. Snouffer v. State, 684 So. 2d 247 (Fla. Dist. Ct. App. 2d Dist. 1996).
12. Clark v. State, 572 So. 2d 1387 (Fla. 1981); see also, Foster v. State, 576 So. 2d 937 (Fla. Dist. Ct. App. 5th Dist. 1991), wherein it was observed:
"The Clark court has, by permitting the defendant (at his option) to require a continuance so that multiple offenses charged in different informations eventually come before a sentencing court at or about the same time, converted the language of the rule to merely mean "pending before the court" and has eliminated the limiting language "for sentencing." The original wording of the rule at least encouraged the defendant to consolidate his charges for simultaneous disposition in order to get the benefit of a single scoresheet: the "new" rule eliminates this incentive. Further, any rule that gives the defendant a free ride after his initial conviction for all additional crimes in the hopper makes crimes, like donuts, cheaper by the dozen. While this is a good marketing device to increase the sales of donuts, its value in discouraging multiple crimes is suspect." (Harris, J., concurring specially).
13. See, Gallagher v. State, 476 So. 2d 754 (Fla. Dist. Ct. App. 5th Dist. 1985).
14. Gonzalez v. State, 821 So. 2d 1194 (Fla. Dist. Ct. App. 3d Dist. 2002); State v. Williams, 624 So. 2d 407 (Fla. Dist. Ct. App. 2d Dist. 1993).
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