5D01-496 Williams v. State

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State: Florida

Court: Florida Fifth District Court

Docket No: 5D01-496

Case Date: 01/14/2002

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2002

JOHNNY L. WILLIAMS, Appellant, v. Case No. 5D01-496

STATE OF FLORIDA, Appellee. / Opinion Filed January 18, 2002 Appeal from the Circuit Court for Putnam County, Edward E. Hedstrom, Judge. James B. Gibson, Public Defender, and Lyle Hitchens, Assistant Public Defender, Daytona Beach, for Appellant. Robert A. Butterworth, Attorney General, Tallahassee, and Robert E. Bodnar, Jr., Assistant Attorney General, Daytona Beach, for Appellee. PLEUS, J. Williams appeals his sentences on Count 1, robbery with a weapon, for life under the Habitual Violent Felony Offender Act ("HVFO") and 30 years under the Prison Releasee Reoffender Act ("PRR"), and Count 2, aggravated battery, for 15 years under PRR, consecutive to Count 1. He argues that the trial court erred in imposing both a PRR and HVFO sentence for the robbery and a consecutive PRR sentence for the aggravated battery

committed in the same criminal episode as the robbery.1 We find no error with respect to the imposition of the dual sentence for the robbery but reverse the aggravated battery sentence and remand for resentencing on that count. Williams argues that the trial court erred by imposing concurrent sentences of life and 30 years on Count 1, robbery with a weapon. This issue has been resolved against Williams in Grant v. State, 770 So. 2d 665 (Fla. 2000) and Kimbrough v. State, 776 So. 2d 1055 (Fla. 5th DCA 2000), which hold that a defendant may receive two enhanced sentences for a single offense - one under PRR, and the other under the Habitual Felony Offender Act ("HFO"), "so long as the HFO sentence results in a greater sentence." Kimbrough at 1057. The only distinction between this case and Grant and Kimbrough is that Williams was sentenced as an HVFO, not an HFO. This distinction does not change our analysis because both designations are enhancements under section 775.084, Florida Statutes (2001).2 Because Williams' HVFO sentence of life exceeds his PRR sentence of 30 years, the sentence is legal. In effect, the concurrent PRR sentence acts as a minimum mandatory condition of the HVFO sentence. Kimbrough, 776 So. 2d at 1057. Williams next argues that the trial court erred by imposing consecutive PRR sentences on Counts 1 and 2 because the two offenses arose from a single criminal episode.

Williams also argues that the state failed to prove he qualified for a PRR sentence. We find no merit in this argument. The PRR Act, in subsection 775.082(9)(c), Florida Statutes (1999) states: "Nothing in this subsection shall prevent a court from imposing a greater sentence of incarceration as authorized by law, pursuant to s. 775.084 or any other provision of law." 2
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Consecutive sentences for crimes arising from the same criminal episode under the PRR Act are not permitted. Smith v. State, 773 So. 2d 1278, 1280 (Fla. 5th DCA 2000); Durr v. State, 773 So. 2d 644 (Fla. 5th DCA 2000); contra, Branch v. State, 790 So. 2d 437 (Fla. 1st DCA 2000). The state argues that these crimes were committed during separate criminal episodes because they involved different elements and separate victims. The fact that the crimes have separate elements of proof is not controlling. See Parker v. State, 633 So. 2d 72 (Fla. 1st DCA 1994). There is some support for the state's argument that crimes involving different victims may be considered separate criminal episodes; however, the relied upon cases involve multiple discharges of a firearm against multiple victims. See, e.g., State v. Thomas, 487 So. 2d 1043 (Fla. 1986); Lifred v. State 643 So. 2d 94 (Fla. 4th DCA 1994) ("in the case of multiple discharges of a firearm at multiple victims, there are, by definition, separate violations of each victim's rights"). There is no bright line test for distinguishing a single criminal episode from separate criminal episodes. See Echelmeier v. State, 662 So. 2d 994 (Fla. 2d DCA 1995). Rather, the court must focus on the facts of each case. Id. In making such determinations, courts have considered factors such as the nature, time, place and number of victims involved. See Smith v. State, 650 So. 2d 689, 691 (Fla. 3d DCA 1995). Whether the two offenses were committed during a single criminal episode is a question of fact. See Colson v. State, 678 So. 2d 1354 (Fla. 1st DCA 1996). Under our standard of review, we must affirm the sentence if the trial court applied the correct rule of law and its findings are supported by competent substantial

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evidence. State v. Glatzmayer, 789 So. 2d 297 n. 7 (Fla. 2001). We conclude that the trial court did not apply the correct rule of law and that the ruling is not supported by competent substantial evidence. It is apparent from the record that the state, defense, and court agreed that both offenses were committed during one criminal episode. At the sentencing hearing, the prosecutor acknowledged that "if a person is charged in one case for a particular criminal episode that involves more than one count you cannot

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