Colson v. State, 96-267

• Decision Date: 05 August 1996
• Docket Number: No. 96-267,96-267
• Parties: 21 Fla. L. Weekly D1787 Pedro COLSON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1354

678 So.2d 1354

21 Fla. L. Weekly D1787

Pedro COLSON, Appellant, v. STATE of Florida, Appellee.

No. 96-267.

District Court of Appeal of Florida First District.

Aug. 5, 1996.

No brief filed, for Appellant.

No brief filed, for Appellee.

MICKLE, Judge.

This is an appeal from the lower court's order denying the appellant's motion for post-conviction relief. Having concluded that the order and its attachments do not conclusively refute the appellant's facially sufficient allegations, we are constrained to reverse the order and remand for the lower tribunal to grant the requested relief, to hold an evidentiary hearing, or to attach portions of the files and records that conclusively show the appellant is not entitled to relief. Fla.R.Crim.P. 3.850(d).

The state charged the appellant with two 1990 crimes: burglary of a dwelling (Count I) and dealing in stolen property, a ladder (Count II), and a jury found him guilty as charged. The trial court classified him as an habitual felony offender and imposed enhanced sentences of 30 years (I) and 10 years (II), to run consecutively. The judgment and sentence were per curiam affirmed. Colson v. State, 589 So.2d 295 (Fla. 1st DCA 1991). The trial court's denial of the appellant's first motion for postconviction relief also was affirmed. Colson v. State, 640 So.2d 1110 (Fla. 1st DCA 1994). A subsequent petition for habeas corpus relief in the federal district court was dismissed.

In his properly sworn second motion for post-conviction relief, the appellant alleged that defense counsel had been ineffective for failing to object to the imposition of consecutive sentences. In its order, the trial court attached copies of the information, the sentencing guidelines scoresheet, and the judgment purporting to show that the sentences are proper, so that counsel had no reason or obligation to challenge the consecutive nature of the sentences. We conclude that the order and attachments fail to show conclusively that the appellant is not entitled to relief.

Although the appellant waited to file the instant motion more than two years after his judgment and sentence became final, we conclude that it is a timely, proper motion pursuant to the rules of law announced in Hale v. State, 630 So.2d 521, 524 (Fla.1993), cert. den., --- U.S.---, 115 S.Ct. 278, 130 L.Ed.2d 195 (1994) (there is no statutory authority allowing trial court to impose consecutive habitual felony offender sentences for "multiple crimes committed during a single criminal episode"), and State v. Callaway, 658 So.2d 983, 986-87 (Fla.1995) (providing for "two-year window" following Hale decision for criminal defendants to challenge the imposition of consecutive habitual felony offender sentences for multiple offenses arising out of a single criminal episode). Because it was filed within two years of Hale, the motion is timely. Fla.R.Crim.P. 3.850(b)(2); Pace v. State, 662 So.2d 1001 (Fla. 1st DCA 1995).

Habitual felony offender sentences can be imposed to run consecutively only for separate, distinct crimes that do not occur in the course of a single criminal episode. Pace, 662 So.2d at 1003; Garrison v. State, 654 So.2d 1176 (Fla. 1st DCA 1994); Spillane v. State, 647 So.2d 1000 (Fla. 2d DCA 1994). Whether a Hale sentencing issue is raised is a factual question to the extent that it depends on factual evidence involving the time, place, and circumstances of the offenses, information that often cannot be determined from the face of the record. Pace, 662 So.2d at 1003; Woods v. State, 615 So.2d 197, 199 (Fla. 1st DCA 1993) (in imposing minimum mandatory sentences, determination of whether two separate and distinct criminal episodes occurred requires court to consider "whether separate victims are involved, whether the crimes occur in separate locations, and whether there has been a temporal break between the incidents").

The trial court correctly concluded that the appellant had alleged a prima facie basis for relief. In its order, the court stated that "the burglary took place at a different time than [sic] the sale of the stolen property." Relying on that assumption, the court concluded that the two offenses did not arise from a single criminal episode and, therefore, were properly...