Kittles v. State
| Decision Date | 31 March 2010 |
| Docket Number | No. 4D09-2269.,4D09-2269. |
| Parties | Richard KITTLES, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Richard Kittles, Milton, pro se.
Bill McCollum, Attorney General, Tallahassee, and Georgina Jimenez Orosa, Assistant Attorney General, West Palm Beach, for appellee.
Appellant, Richard Kittles, timely appeals the summary denial of his rule 3.800(a) motion to correct illegal sentence. He contends that his sentence for misdemeanor crimes is illegal, because the trial court ordered it served in prison, while it could be served only in county jail under the facts of this case. We agree and reverse, as a trial court does not have the authority to impose a state prison sentence for a misdemeanor conviction unless the misdemeanor sentence is imposed concurrently with a felony sentence.
In lower tribunal case number 01-18121 CF in the Circuit Court of Broward County, appellant was convicted of two felonies and a misdemeanor, for which he was sentenced to concurrent sentences in state prison. In lower tribunal case number 01-4270 CF, appellant was convicted of three misdemeanors for which he was sentenced to a term of one year in the Department of Corrections on two of the counts and 60 days in Broward County Jail on the other. The sentences were to run concurrently with each other, but consecutive to the sentences imposed in case number 01-18121 CF.
Appellant filed a rule 3.800(a) motion to correct illegal sentence, claiming that his sentence in case number 01-4270 CF was illegal because those crimes carried only jail time. The state filed a response to appellant's motion, arguing that summary denial was appropriate. However, while the state's response addressed the permissibility of consecutive sentences, the state's response never directly addressed whether it was permissible for the trial court to impose a one-year prison sentence, rather than one year in county jail, for appellant's misdemeanor convictions in case number 01-4270 CF. Relying on the state's response, the trial court summarily denied appellant's motion, prompting this appeal.
Because a motion to correct a sentencing error involves a pure issue of law, our standard of review is de novo. See Willard v. State, 22 So.3d 864, 864 (Fla. 4th DCA 2009). Florida Rule of Criminal Procedure 3.800(a) provides that "a court may at any time correct an illegal sentence imposed by it ... when it is affirmatively alleged that the court records demonstrate on their face an entitlement to that relief...." An "illegal sentence" for purposes of rule 3.800(a) is one which imposes a "kind of punishment that no judge under the entire body of sentencing statutes could possibly inflict under any set of factual circumstances." See Carter v. State, 786 So.2d 1173, 1181 (Fla. 2001).
By definition, a "misdemeanor" is a criminal offense that is punishable by a term of imprisonment in a county correctional facility for a sentence "not in excess of 1 year." § 775.08(2), Fla. Stat. (2001). While misdemeanors ordinarily are not punishable by imprisonment in a state prison, it is permissible for a court to impose a prison sentence for a misdemeanor if it is to be served in a state penitentiary concurrently with a felony prison sentence. See Anderson v. State, 617 So.2d 827, 828 (Fla. 1st DCA 1993) (); see also Daniels v. State, 491 So.2d 543, 545 (Fla. 1986) ()
However, where the misdemeanor sentence is not to be served...
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