JORDAN v. STATE (2020)

ON CONFESSION OF ERROR

Appellant Kevin Jordan appeals the trial court's order striking his motion to correct an illegal sentence in lower case number F02-16327. We ordered the State to file a supplemental response addressing the legality of the general sentence imposed as well as the State's original response that the appellant's motion was time barred and successive. Upon the State's confession of error, with which we agree after a thorough review of the record, we reverse and remand for further proceedings.

As an initial matter, the trial court erred in striking the appellant's motion below concluding that he was represented by counsel and that counsel had not adopted his motion. We also find that the sentence imposed is an illegal, general sentence that exceeds the statutory maximum for one of the two counts, a second-degree felony.

In case number F02-16327, Jordan pled guilty to count one (1): sexual battery/no serious injury, a second-degree felony in violation of section 794.011(5), Florida Statutes (2005), punishable by a maximum of fifteen years in state prison; and count two (2): burglary of an occupied dwelling with assault or battery, a first-degree felony, in violation of section 810.02(2)(a), Florida Statutes (2005), an offense punishable by a term of years not exceeding life. The trial court sentenced Jordan to 12 years in state prison followed by 12 years of reporting probation, a total of twenty-four (24) years for both counts, in a general sentence. Jordan filed a motion to correct an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). The trial court struck the motion finding that the motion had not been adopted by defense counsel. This appeal followed.

At the time the trial court struck the motion, the clerk's docket incorrectly showed that Jordan was still being represented by Assistant Public Defender, Penny Kim. However, Kim's representation extended only to Jordan's civil commitment, which the court had issued on May 1, 2015. Because Jordan was no longer represented, the trial court had jurisdiction to address the merits of the motion. See Mann v. State, 937 So. 2d 722, 727 (Fla. 3d DCA 2006) (“There is ․ no statutory entitlement to representation in collateral relief proceedings for defendants not under a sentence of death.”).

As to the merits, although the twenty-four-year sentence is within the statutory maximum for a first-degree felony as to the burglary count, count one was a second-degree felony punishable by a maximum of fifteen years in state prison. Florida Rule of Criminal Procedure 3.701(12) plainly states, “A sentence must be imposed for each offense.” Therefore, the trial court “erred in not vacating the entire general sentence, which encompassed all [ ] counts. The trial court [ ] should have imposed a distinct sentence for each convicted offense, including those counts for which the sentences were not over the statutory maximum.” Brazley v. State, 871 So. 2d 986, 987 (Fla. 3d DCA 2004) (holding that the trial court erred in imposing a general forty-year concurrent sentence on all six counts).

Accordingly, we reverse and remand with instructions to the trial court to vacate the sentence in case number F02-16327 and to enter a distinct sentence for each convicted offense. Id. Because Jordan has challenged only the general nature of the sentence imposed, Jordan need not be present for re-sentencing. Id.

Reversed and remanded with instructions.

FERNANDEZ, J.