Johnson v. State
| Decision Date | 12 September 2019 |
| Docket Number | No. 1D17-5170,1D17-5170 |
| Citation | 281 So.3d 539 |
| Parties | Cortez Kwame JOHNSON, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Andy Thomas, Public Defender, and A. Victoria Wiggins, Assistant Public Defender, Tallahassee, for Appellant.
Ashley Moody, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.
Cortez Johnson appeals an order denying his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. He claims his sentence is illegal, and trial counsel was ineffective for failing to fully advise him regarding sentencing. We affirm.
After charging Johnson with multiple offenses, the State extended a plea offer of fifteen years. Johnson and his counsel discussed the minimum possible sentence of ten years and the statutory maximum. Johnson's counsel advised, based on previous sentencing patterns, that the trial court may be lenient and sentence him below the State's offer. Counsel claimed he discussed the drawbacks of a straight up plea, that it may result in a longer sentence, and that the sentencing decision was ultimately up to the trial court. Yet, Johnson declined the State's plea offer.
Thereafter, Johnson pled no contest in a straight up plea to the State charges. His trial counsel requested that the state sentences run concurrently with a ten-year federal prison sentence Johnson was currently serving. The trial court granted counsel's request, and Johnson was sentenced to twenty years in state prison to be served concurrent to his federal sentence. But after sentencing on the state charges, Johnson was moved out of federal prison and into the state prison system to begin serving his state sentence. As a result, Johnson is slated to serve a total of thirty years as he receives no credit against his federal sentence while in state custody.
Johnson filed an Amended Motion for Post-Conviction Relief under Florida Rule of Criminal Procedure 3.850. He asserts his sentence was illegal because he was forced to serve his state prison sentence first and then afterward, begin serving his federal sentence, thus, nullifying the condition that the state and federal sentences be served concurrently. He also claims trial counsel was ineffective for failing to properly advise him regarding his sentence. The trial court denied Johnson's motion.
On appeal, Johnson argues the trial court erred in denying his 3.850 motion because, although the trial court lacked the authority to order the Department of Corrections to allow him to serve his state sentence in a federal prison, the trial court had the authority to vacate the imposed concurrent state sentence, and then either impose a suspended sentence of ten years, enter a sentence of time served allowing him to proceed to federal prison, or allow him to withdraw his plea. We disagree.
Regarding concurrent sentences, Florida Statutes dictate:
A county court or circuit court of this state 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 this section, 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.
§ 921.16(2), Fla. Stat. Further, "[a]lthough trial courts have the statutory authority to impose a sentence that is to be served concurrently with a sentence imposed by another state or federal court, the Department of Corrections has discretionary authority regarding the placement of an inmate sentenced to serve multiple sentences." Davis v. State , 852 So. 2d 355, 357 (Fla. 5th DCA 2003). Hence, a sentence is not necessarily illegal on the basis that the sentencing judge lacks the authority to impose it. Courts have held, "an order providing that a state sentence is to be served concurrently with a federal sentence is really only a recommendation." Id. ; accord Napolitano v. State , 875 So. 2d 1290 (Fla. 3d DCA 2004) ; Doyle v. State , 615 So. 2d 278 (Fla. 3d DCA 1993), rev. denied , 629 So. 2d 132 (Fla. 1993), cert. denied , 511 U.S. 1007, 114 S.Ct. 1376, 128 L.Ed.2d 52 (1994).
Thus, Johnson's concurrent sentence was merely a recommendation by the sentencing judge and the discretion to determine how and where the sentence would be served belonged to the Department of Corrections. Johnson relies on Rodgers v. State , 76 So. 3d 349 (Fla. 3d DCA 2011) to demonstrate that appellate courts have granted relief in the form of a 3.850 motion to allow sentences to be served as originally intended. However, the appellant in Rodgers entered a guilty plea and was given a state sentence to be served concurrent to a federal sentence. Id. at 349. The court in Rodgers is silent as to whether Rodgers' guilty plea was entered as part of a plea bargain or conditioned upon a certain sentence being imposed. However, it can be inferred, given the court's reliance on Glenn v. State , 776 So. 2d 330, 331 (Fla. 4th DCA 2001) (), that there was a condition attached to Rodgers' guilty plea which was not present in the instant case. Id. at 350. Further, the court in Rodgers stated, "the State conceded that the allegations in Rodgers' motion for postconviction relief are facially sufficient, and therefore, the trial court erred by summarily denying the motion." Id. at 349. Here, the State does not make such a concession.
Similarly, in Hutchinson v. State , 845 So. 2d 1019 (Fla. 3d DCA 2003) and Taylor v. State , 710 So. 2d 636 (Fla. 3d DCA 1998), the appellants were granted relief pursuant to a 3.850 motion because they were offered plea bargains and their acceptance of those plea bargains was conditioned upon the sentences being concurrent. Here, unlike the appellants in Rodgers, Hutchinson, and Taylor, Johnson pled no contest in a straight up plea after rejecting the State's plea offer. A 3.850 motion does not provide relief because his sentence is within the statutory minimum and maximum and is, therefore, legal. Further, because Johnson's sentence was not part of a plea bargain and his no contest plea was not based on the condition of concurrent sentencing, the plea was not involuntary. The order on appeal is affirmed.
AFFIRMED .
A concurrent federal/state sentence that results in longer than agreed-upon incarceration can be contrary to a plea bargain and thereby be remediable under Florida law. Absent a plea deal, such a sentence can also be contrary to a trial judge's sentencing order and thereby subject to correction to effectuate the trial judge's directive. In the former, a defendant has a reliance interest in the specific enforcement of the plea bargain; in the latter, a defendant, as well as the sentencing judge, has a strong interest in the enforcement of the sentence actually imposed. Here, the trial judge's sentence should be enforced, not because Johnson agreed to it, but because the trial judge ordered it.
Under Florida law, a "county court or circuit court of this state 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," which is a clear statement of legal authority for the type of concurrent state/federal sentence imposed in this case. § 921.16(2), Fla. Stat. (2019). The trial judge sentenced Johnson to a total of twenty years for his state crimes with the condition that his sentence be served concurrent with the ten-year federal sentence he was currently serving. The clear intent of the trial judge's sentencing order was that Johnson not serve more than twenty years overall.
But Johnson was moved from the federal prison into a Florida prison, resulting in a problem. Because he gets no credit towards his federal sentence for time served in the Florida prison, he will be incarcerated a total of thirty years—twenty years in a Florida prison and ten in a federal prison—which far exceeds the twenty years the trial judge intended and ordered.
Had Johnson's sentence be pursuant to a plea bargain, he would be entitled to relief on the theory of "specific performance" of the plea deal. See, e.g. , Hutchinson v. State , 845 So. 2d 1019, 1020 (Fla. 3d DCA 2003) (); see also Sadler v. State , 980 So. 2d 567, 569 (Fla. 5th DCA 2008) (); Glenn v. State , 776 So. 2d 330, 331 (Fla. 4th DCA 2001) (); Taylor v. State , 710 So. 2d 636, 637 (Fla. 3d DCA 1998) ().
The appropriate remedy, which was originally set forth in Taylor v. State and has been generally followed since, is for the trial court to ...
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