Dorfman v. State, No. 50026

CourtUnited States State Supreme Court of Florida
Writing for the CourtENGLAND; OVERTON; ADKINS
Citation351 So.2d 954
PartiesBernard DORFMAN, Petitioner, v. The STATE of Florida, Respondent.
Docket NumberNo. 50026
Decision Date28 July 1977

Page 954

351 So.2d 954
Bernard DORFMAN, Petitioner,
v.
The STATE of Florida, Respondent.
No. 50026.
Supreme Court of Florida.
July 28, 1977.
Rehearing Denied Dec. 6, 1977.

Bennett H. Brummer, Public Defender, and Elliot H. Scherker, Asst. Public Defender, for petitioner.

Robert L. Shevin, Atty. Gen., and William M. Grodnick, Asst. Atty. Gen., for respondent.

ENGLAND, Justice.

Bernard Dorfman brings us by petition for a writ of certiorari two issues requiring statewide clarification: (1) whether trial judges may impose so-called "general sentences" on defendants convicted of more than one crime; and (2) whether one sentenced to a prison term after he has spent time in a state mental hospital under a court committal order must be given credit against his sentence for the time spent in hospital confinement. The Third District Court of Appeal, in a decision reported at 333 So.2d 481, has approved a three year general sentence for the nine crimes of which Dorfman was convicted, and it has refused to give him credit for the time he spent in South Florida State Hospital. 1

In 1971, Dorfman entered pleas of guilty to each of nine counts of lewd and lascivious assault on a minor female without intent to commit rape, and was adjudicated guilty as to each. Pursuant to Chapter 917, Florida Statutes (1971), he was ordered committed to South Florida State Hospital as a mentally disordered sex offender and placed on five years probation, to begin upon his release from the hospital. He was released from the hospital in 1972. In 1975, his probation was revoked and he was given a general sentence of three years imprisonment, without apportionment of the term

Page 955

between the nine counts. The crimes for which Dorfman was found guilty were at that time punishable by imprisonment for not more than ten years. 2 Dorfman was not given credit for the time he had spent in the hospital under a commitment order. 3

1. General Sentence

Dorfman concedes that general sentences are not inherently unlawful, but he insists that the practice of imposing a general sentence produces such burdens for appellate courts and prison authorities that we should strike them down. The State agrees that general sentences are not inherently unlawful and argues that it is legally irrelevant that they may have adverse practical effects.

At the time Dorfman was sentenced, no rule or statute of this state authorized the imposition of a single sentence on a defendant adjudged guilty of more than one crime. 4 General sentences have long been utilized by some of Florida's trial judges, 5 however, and the parties agree that this Court has never required resentencing in this class of cases. 6

Obviously, the imposition of general sentences has essentially been left to the discretion of trial judges. In fact, appellate courts of Florida had not much concerned themselves with general sentences until 1975 when the Second District Court of Appeal vacated a general sentence and remanded the case for resentencing on the basis of the reasoning of the United States Fifth Circuit Court of Appeal in Benson v. United States, 332 F.2d 288 (5th Cir. 1964). Darden v. State, 306 So.2d 581 (Fla.2d DCA 1975). In Benson, the court had invalidated a general sentence because its imposition impeded appellate and collateral review of convictions, and hindered prison authorities. 7

Since Darden, the Second District Court of Appeal has regularly vacated all general sentences which have come to its attention. 8 The First District Court of Appeal has now adopted the Second District's position. Johnson v. State, 338 So.2d 252 (Fla. 1st DCA 1976). 9

The Third District Court of Appeal, which had also accepted Darden, 10 has now

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limited its application to those general sentences which do not exceed the maximum sentence which could have been imposed as to any one of the crimes for which the defendant was convicted. 11 The Fourth District Court of Appeal apparently has not decided the issue. It has, however, applied our decision in Cone v. State, 285 So.2d 12 (Fla.1973), and held that a single sentence imposed for crimes charged in a dual-count information and representing facets of the same criminal transaction will be treated as having been imposed for the highest offense and therefore not considered to be a "general" sentence. Carter v. State, 330 So.2d 508 (Fla.4th DCA 1976). 12

Courts in some jurisdictions have disapproved general sentences on the basis of inferred statutory policies 13 or judicially declared policy, 14 usually with only minimal discussion, while other courts have affirmed general sentences on the ground that no prejudice results to the defendant. 15 Many courts have criticized the practice of imposing general sentences, however, even while affirming them, on the ground that an appellate court finding reversible error as to any one of the several convictions would have to vacate the entire sentence on direct review. 16 The same, of course, is true on collateral review.

The ready acceptance of Darden by our district courts suggests to us that the concept of traditional sentencing discretion should no longer serve as the basis on which to uphold a practice shown to have only negative effects on our criminal justice system. We will not accept the notion that trial judges should be allowed to impose general sentences simply because they have always done so.

A general sentence aggregates all...

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84 practice notes
  • Gibson v. Florida Dept. of Corrections, No. 1D02-0118.
    • United States
    • Court of Appeal of Florida (US)
    • October 9, 2002
    ...(Fla. 5th DCA 2000). "The evil of a general sentence ... inheres in the uncertainty that its inscrutability creates." Dorfman v. State, 351 So.2d 954, 957 (Fla. 1977). A general sentence for multiple offenses is improper. See Fasenmyer v. State, 457 So.2d 1361, 1366 (Fla.1984); Carroll v. S......
  • Davis v. United States, No. 13146.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • January 29, 1979
    ...Sanchez, 150 N.J.Super. 424, 375 A.2d 1228 (Super.Ct. App.Div.1977); State v. Marshall, 247 N.W.2d 484 (S.D.1976). See Dorfman v. State, 351 So.2d 954 (Fla.1977). Cf. State v. Shiffbauer, 197 Neb. 805, 251 N.W.2d 359 (1977) (notes legislative change). Contra, State v. Kuczynski, Ind.App., 3......
  • Shelton v. US, No. 96-CF-1050.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • December 24, 1998
    ...confinement of appellant under Kansas's Sexually Violent Predator Act after completion of criminal imprisonment); Dorfman v. State, 351 So.2d 954, 957 (Fla.1977) (confinement after guilty plea under sexual predator commitment statute does not entitle defendant to credit against later crimin......
  • Walcott v. State, No. 83-1083
    • United States
    • Court of Appeal of Florida (US)
    • November 15, 1984
    ...Fla.Stat.); (3) improper departures from guideline sentences (Rule 3.701b.6. and d.11), (4) general sentences (see Dorfman v. State, 351 So.2d 954 (Fla.1977)), (5) imposition of a withheld sentence, (6) failure to impose mandatory minimum sentences (see §§ 775.082(1), 775.087(2), and 893.13......
  • Request a trial to view additional results
85 cases
  • Gibson v. Florida Dept. of Corrections, No. 1D02-0118.
    • United States
    • Court of Appeal of Florida (US)
    • October 9, 2002
    ...(Fla. 5th DCA 2000). "The evil of a general sentence ... inheres in the uncertainty that its inscrutability creates." Dorfman v. State, 351 So.2d 954, 957 (Fla. 1977). A general sentence for multiple offenses is improper. See Fasenmyer v. State, 457 So.2d 1361, 1366 (Fla.1984); Carroll v. S......
  • Davis v. United States, No. 13146.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • January 29, 1979
    ...Sanchez, 150 N.J.Super. 424, 375 A.2d 1228 (Super.Ct. App.Div.1977); State v. Marshall, 247 N.W.2d 484 (S.D.1976). See Dorfman v. State, 351 So.2d 954 (Fla.1977). Cf. State v. Shiffbauer, 197 Neb. 805, 251 N.W.2d 359 (1977) (notes legislative change). Contra, State v. Kuczynski, Ind.App., 3......
  • Shelton v. US, No. 96-CF-1050.
    • United States
    • District of Columbia Court of Appeals of Columbia District
    • December 24, 1998
    ...confinement of appellant under Kansas's Sexually Violent Predator Act after completion of criminal imprisonment); Dorfman v. State, 351 So.2d 954, 957 (Fla.1977) (confinement after guilty plea under sexual predator commitment statute does not entitle defendant to credit against later crimin......
  • Walcott v. State, No. 83-1083
    • United States
    • Court of Appeal of Florida (US)
    • November 15, 1984
    ...Fla.Stat.); (3) improper departures from guideline sentences (Rule 3.701b.6. and d.11), (4) general sentences (see Dorfman v. State, 351 So.2d 954 (Fla.1977)), (5) imposition of a withheld sentence, (6) failure to impose mandatory minimum sentences (see §§ 775.082(1), 775.087(2), and 893.13......
  • Request a trial to view additional results

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