Concurrent and Consecutive Sentencing Alternatives in Florida

Hon. William H. Burgess, III, B.C.S.

The basic alternatives for concurrent and consecutive sentencing alternatives under Florida law are as follows:

Discretionary Consecutive Sentencing

Same Indictment, Information, or Affidavit: A defendant convicted of two or more offenses charged in the same indictment, information, or affidavit or in consolidated indictments, informations, or affidavits must serve the sentences of imprisonment concurrently unless the court directs that two or more of the sentences be served consecutively.¹ The court must affirmatively express its intention that such sentences are to run concurrently; otherwise, they will run consecutively.² Different Indictment, Information, or Affidavit: Sentences of imprisonment for offenses not charged in the same indictment, information, or affidavit must be served consecutively unless the court directs that two or more of the sentences be served concurrently.³

There is nothing in the Criminal Punishment Code that prohibits the imposition of consecutive standard sentences, even when the sentences arise from offenses committed in a single criminal episode.⁴ Consecutive county jail sentences that exceed one year for misdemeanors, as opposed to felonies, are permitted, because, by its plain language, section 922.051, Fla. Stat.⁵ does not apply to misdemeanors.⁶

Mandatory Consecutive Sentencing. Sentences for certain offenses must, by operation of statutory law, run consecutively. Any sentence for sexual battery as defined in chapter 794 or murder as defined in section 782.04 must be imposed consecutively to any other sentence for sexual battery or murder which arose out of a separate criminal episode or transaction.⁷ The punishment imposed for stalking under section 784.048 is required to run consecutively to any former sentence imposed for a conviction for any offense under section 794.011, section 800.04, or section 847.0135(5).⁸ Whenever a defendant is convicted under the provisions of sections 944.41 through 944.47 (pertaining to inmate hostage-taking,⁹ inmate mutiny, rioting or striking,¹⁰ helping prisoners to escape,¹¹ and moving contraband in and out of a correctional facility¹²), the punishment of imprisonment imposed must be served consecutively to any former sentence imposed on that defendant.¹³ Mandatory consecutive sentencing is permissible, despite the contention that the legislature cannot deprive the sentencing court of all discretion in deciding whether to impose a consecutive of concurrent sentence.¹⁴

Stacking Minimum Mandatory Sentences Arising From the Same Criminal Episode. Where authorized by statute or clear legislative intent, the sentencing court can stack consecutive minimum mandatory sentences arising from a single criminal episode. Section 893.135, Fla. Stat., for example, authorizes consecutive minimum mandatory sentences and fines for trafficking in cocaine and conspiracy to traffic in cocaine, even though these offenses may arise out of the same transaction.¹⁵

Firearms or Destructive Devices. As written, paragraph (2)(d) of section 775.087 contemplates two distinct imprisonment terms: a term imposed for a qualifying felony pursuant to subsection (2), and a term for a non-qualifying felony. The last sentence of paragraph (2)(d) further delineates the manner in which these distinct imprisonment terms are to be served in relation to one another. Specifically, it expressly mandates only that a qualifying felony sentence run “consecutively to” any sentence imposed for a non-qualifying felony. Nothing within paragraph (2)(d) requires a qualifying felony sentence to run consecutively to another qualifying felony sentence. Generally, consecutive sentencing of mandatory minimum imprisonment terms for multiple firearm offenses is impermissible if the offenses arose from the same criminal episode and a firearm was merely possessed but not discharged. If, however, multiple firearm offenses are committed contemporaneously, during which time multiple victims are shot at, then consecutive sentencing is permissible but not mandatory.¹⁶

Habitualized and Prison Releasee Reoffender Offenses. Once sentences from multiple crimes committed during a single criminal episode have been enhanced through a sentencing scheme that extends the permissible sentence beyond that described by the statute setting forth the elements of that offense, as through the habitual offender statutes, the total penalty may not in the absence of legislative authority be further enhanced by ordering that the enhanced sentences run consecutively.¹⁷ In the case of habitualized offenses, once multiple sentences from a single criminal episode are enhanced through the habitualization statute, the total penalty cannot be increased absent specific legislative authorization.¹⁸ The reasoning behind this rule is that the legislative intent to increase the period of incarceration for repeat felony offenders is accomplished by the enlargement of the maximum sentence that may be imposed, and the Legislature has not authorized courts to impose consecutive habitualized sentences where the crims arise from a single criminal episode.¹⁹ This rule applies to situations in which the court imposes any form of consecutive sentencing for habitualized offenses, including a sentence of prison followed by a sentence of probation, for offenses arising out of the same criminal episode.²⁰ The rule against stacking enhanced sentences does not apply to the stacking of sentences increased through reclassification.²¹ It is permissible to stack enhanced sentences with minimum mandatory sentences that do not extend the permissible sentence beyond that prescribed by the statute setting forth the elements of the offense that is the subject of minimum mandatory sentencing. It is, therefore, permissible to stack a Habitual Felony Offender (HFO) or Habitual Violent Felony Offender (HFVO) sentence and a Prison Releasee Reoffender Protection Act (PRRPA) sentence.²²

Capital Felonies. A trial judge has the discretion to stack minimum mandatory sentences in cases involving capital felonies together with non-capital felonies committed with the use of a firearm, where the predicate offenses all occurred during the course of a single episode.²³ Where, however, the defendant is convicted of first-degree felony murder and robbery (the underlying felony) for killing the same victim in the course of a robbery, consecutive minimum mandatory sentences for the murder and robbery are improper.²⁴ Note that, where the State charges a defendant with first-degree murder and robbery and proceeds on both a premeditated murder theory and a felony murder theory, and the jury returns a verdict of “guilty as charged,” the trial court cannot presume that the defendant was convicted on a premeditated murder theory.²⁵

Concurrency or Coterminancy With Sentences of Foreign Jurisdictions. A county court or circuit court of Florida may direct that the sentence imposed by such court be served concurrently with a sentence imposed by a court of another state or of the United States or, for purposes of section 921.16, concurrently with a sentence to be imposed in another jurisdiction. In such case, the Department of Corrections may designate the correctional institution of the other jurisdiction as the place for reception and confinement of such person and may also designate the place in Florida for reception and confinement of such person in the event that confinement in the other jurisdiction terminates before the expiration of the Florida sentence. The sheriff is required to forward commitment papers and other documents specified in section 944.17 to the department. Upon imposing such a sentence, the court must notify the Parole Commission as to the jurisdiction in which the sentence is to be served. Any prisoner so released to another jurisdiction shall be eligible for consideration for parole by the Parole Commission pursuant to the provisions of chapter 947, except that the commission shall determine the presumptive parole release date and the effective parole release date by requesting such person’s file from the receiving jurisdiction. Upon receiving such records, the commission shall determine these release dates based on the relevant information in that file and shall give credit toward reduction of the Florida sentence for gain-time granted by the jurisdiction where the inmate is serving the sentence. The Parole Commission may concur with the parole release decision of the jurisdiction granting parole and accepting supervision.²⁶ A county court or circuit court of Florida may not direct that the sentence imposed by such court be served coterminously with a sentence imposed by another court of this state or imposed by a court of another state.²⁷

Offenses Committed While on Control Release. Where the defendant is being sentenced for an offense committed while on control release, a court may order a sentence to run concurrently or consecutively to the pending control release violation.²⁸ In fact, the trial court must exercise its discretion to order a sentence imposed for an offense committed while on community release to run concurrently or consecutively to his or her community release sentence and cannot defer the structure of the sentence to the Department of Corrections because the department lacks such sentencing authority.²⁹ This is true because only a court can impose a sentence and an as-yet undetermined action of the Department of Corrections is not a sentence. Rather, the department's action is an administrative determination as to how an inmate's control-release violation affects his status within the context of the sentence he has already received.³⁰

Intermittant or Interrupted Sentences. Since Florida Statutes do not authorize intermittent or interrupted sentences, when a defendant is given a split sentence, the nonincarcerative portion must immediately follow the prison sentence.³¹ Note, however, that section 948.012 does authorize a “reverse split sentence” whereby the defendant is sentenced to a term of probation which is followed by a period of incarceration or community control under certain circumstances.³² A defendant cannot serve a prison term and be on probation simultaneously: The rehabilitative concept of probation presupposes that the probationer is not in prison confinement.³³ A defendant may not be sentenced to prison and community supervision where the community supervision is scheduled to commence prior to the completion of the term of imprisonment.³⁴ When a defendant is sentenced on multiple counts in a single sentencing event, the incarcerative periods of all counts must be completed before the probationary portion of any count begins.³⁵ A prison sentence imposed partly concurrent with and partly consecutive to another prison sentence is illegal since a prisoner has the right to serve a sentence at one stretch, rather than in bits and pieces. It is impossible to comply with a sentence of simultaneous incarceration and probation, and any term of probation presumed to run when the defendant cannot be supervised is a nullity.³⁷ This does not apply, however, in the situation in which incarceration in county jail is a condition of probation.

Simultaneous Incarceration and Supervision. Although the simultaneous imposition of incarceration and probation or community control is illegal, this rule does not apply to separate sentences received from different courts at different times, in which cases the probationary or community control portion of the sentence that completes its incarcerative portion first is tolled until the imprisonment portion of the latter sentence is complete.³⁸ This also does not preclude a court from imposing a period of incarceration not to exceed 364 days as a condition of probation.³⁹

NOTES

¹§ 921.16(1), Fla. Stat.

²See, Platt v. State, 664 So. 2d 307 (Fla. 2d DCA 1995); Kirkland v. State, 633 So. 2d 1138 (Fla. 2d DCA 1994).

³§ 921.16(1), Fla. Stat.

⁴Almendares v. State, 916 So. 2d 29 (Fla. 4th DCA 2005); Rodriguez v. State, 883 So. 2d 908 (Fla. 2d DCA 2004).

⁵“When a statute expressly directs that imprisonment be in a state prison, the court may impose a sentence of imprisonment in the county jail if the total of the prisoner's cumulative sentences is not more than 1 year.” § 922.051, Fla. Stat.

⁶Armstrong v. State, 656 So. 2d 455 (Fla. 1995) (a defendant may be sentenced to consecutive terms in county jail exceeding one year if convicted of multiple misdemeanors); Goodloe v. State, 661 So. 2d 820 (Fla. 1995); Gwynn v. Orange County Bd. of County Comrs, 527 So. 2d 866 (Fla. 5th DCA 1988) (following adjudication of guilt in county court on fifteen misdemeanor traffic offenses and several contempt of court charges, defendant properly sentenced to 12 consecutive one year terms of imprisonment in the county jail); Amrein v. State, 504 So. 2d 783 (Fla. 1st DCA 1987) (consecutive eight month county jail sentences for each of five misdemeanor counts, the sentences to run consecutively to each other, permitted); Mancebo v. State, 338 So. 2d 268 (Fla. 3d DCA 1976) (defendant properly sentenced to serve three consecutive sentences of one year each in the county jail following the entry of pleas of guilty to three separate first-degree misdemeanors); see, Carson v. State, 635 So. 2d 1007 (Fla. 5th DCA 1994) (error for a trial court to sentence a defendant to multiple consecutive one-year sentences in a county jail when the sentences imposed are for felony crimes).

⁷§ 921.16(1), Fla. Stat.

⁸§ 784.048(8), Fla. Stat.

⁹§ 944.44, Fla. Stat.

¹⁰§ 944.45, Fla. Stat.

¹¹§ 944.46, Fla. Stat.

¹²§ 944.47, Fla. Stat.

¹³§ 944.48, Fla. Stat.

¹⁴Jarrell v. State, 576 So. 2d 793 (Fla. 2d DCA 1991).

¹⁵Kelly v. State, 964 So. 2d 135 (Fla. 2007).

¹⁶Williams v. State, 186 So. 3d 989 (Fla. 2016).

¹⁷Hale v. State, 630 So. 2d 521 (Fla. 1993) (habitual felony offender); Daniels v. State, 595 So. 2d 952 (Fla. 1992) (habitual violent felony offender); Spivey v. State, 789 So. 2d 1087 (Fla. 2d DCA 2001) (violent career criminal).

¹⁸Daniels v. State, 595 So. 2d 952 (Fla. 1992).

¹⁹Daniels v. State, 595 So. 2d 952 (Fla. 1992).

²⁰Benjamin v. State, 667 So. 2d 437 (Fla. 2d DCA 1996).

²¹Walsh v. State, 198 So. 3d 783 (Fla. 2d DCA 2016), review denied, 2016 WL 5871665 (Fla. 2016).

²²Cotto v. State, 139 So. 3d 283 (Fla. 2014).

²³Downs v. State, 616 So. 2d 444 (Fla. 1993) (consecutive 25-year minimum mandatory for first-degree murder with a firearm and three-year minimum mandatory for using a firearm in the commission of an aggravated assault arising from a single criminal episode).

²⁴Boler v. State, 678 So. 2d 319 (Fla. 1996).

²⁵Traylor v. State, 785 So. 2d 1179 (Fla. 2000).

²⁶§ 921.16(2), Fla. Stat.

²⁷§ 921.16(3), Fla. Stat.

²⁸Richardson v. State, 947 So. 2d 1219 (Fla. 1st DCA 2007).

²⁹§ 921.16(1), Fla. Stat.; Richardson v. State, 947 So. 2d 1219 (Fla. 1st DCA 2007) (trial court may order a sentence to run concurrently or consecutively to a pending control release violation); McCarthur v. State, 766 So. 2d 292 (Fla. 4th DCA 2000) (trial court must exercise its discretion to sentence the offender to concurrent or consecutive sentences to control release violation in an earlier case); Art. I, § 8, Fla. Const. (barring an administrative agency from imposing a sentence of imprisonment); Pearson v. Moore, 767 So. 2d 1235, 1238–39 (Fla. 1st DCA 2000), approved and remanded, 789 So. 2d 316 (Fla. 2001).

³⁰Scantling v. State, 711 So. 2d 524, 525–26 (Fla. 1998); see also, § 947.141, Fla. Stat.

³¹Calhoun v. State, 522 So. 2d 509 (Fla. 1st DCA 1988) (defendant cannot be sentenced to a period of incarceration, followed by a period of probation, then recalled to serve more prison time before being released to be placed on probation again for separate counts of burglary).

³²§ 948.012(2), Fla. Stat.

³³See, Bernhardt v. State, 288 So. 2d 490 (Fla. 1974); Porter v. State, 585 So. 2d 399 (Fla. 1st DCA 1991).

³⁴Flowers v. State, 899 So. 2d 1257 (Fla. 4th DCA 2005); Joseph v. State, 752 So. 2d 656 (Fla. 2d DCA 2000).

³⁵Smith v. State, 147 So. 3d 1077 (Fla. 5th DCA 2014); Hatton v. State, 689 So. 2d 1195 (Fla. 4th DCA 1997).

³⁶Stroman v. State, 837 So. 2d 1070 (Fla. 2d DCA 2003); Butler v. State, 548 So. 2d 780, 781 (Fla. 2d DCA 1989); see also, Massey v. State, 389 So. 2d 712 (Fla. 2d DCA 1980); Rozmestor v. State, 381 So. 2d 324 (Fla. 5th DCA 1980) (“Imposing a prison sentence that is part concurrent with and part consecutive to another prison sentence is a punishment that no judge under the entire body of sentencing statutes could possibly inflict under any set of factual circumstances, and is an illegal sentence.”).

³⁷Clemons v. State, 629 So. 2d 1067 (Fla. 2d DCA 1994); Ware v. State, 474 So. 2d 332 (Fla. 1st DCA 1985); Brudie v. State, 467 So. 2d 1113 (Fla. 2d DCA 1985).

³⁸Foster v. State, 889 So. 2d 951 (Fla. 5th DCA 2004); Schurman v. State, 847 So. 2d 569 (Fla. 1st DCA 2003).

³⁹§ 948.03(2), Fla. Stat.