Rozmestor v. State, OO-55
| Decision Date | 19 March 1980 |
| Docket Number | No. OO-55,OO-55 |
| Citation | 381 So.2d 324 |
| Parties | Gerald S. ROZMESTOR, Appellant, v. STATE of Florida, Appellee. /Tl-97. |
| Court | Florida District Court of Appeals |
Louis G. Carres, Asst. Public Defender, Tallahassee, for appellant.
Jim Smith, Atty. Gen., Tallahassee and Gregory C. Smith, Asst. Atty. Gen., Daytona Beach, for appellee.
The appellant, Gerald Rozmestor, was convicted of attempted burglary after a jury trial. Rozmestor raises two points on appeal: sufficiency of the evidence to establish a prima facie case on the issue of identity of the appellant as the perpetrator of the criminal act; and legality of the sentence imposed by the trial court because two years of the four year sentence were to be served concurrently with sentences imposed on the appellant on January 11, 1979, and the remaining two years were to be served consecutively to the prior sentences. We find there was sufficient competent evidence against the appellant to sustain his conviction, but because there is no statutory authority to divide the sentence as was done in this case, we remand to the trial court for correction of the sentence not inconsistent with this opinion.
The trial judge sentenced the appellant to a 4 year prison term, upon conviction for the third degree felony charged in the information. The maximum sentence allowable was 5 years. § 777.04(4)(d) Fla.Stat. (1979). At the sentencing hearing the judge said:
. . . it is the sentence of the law and judgment of the court that you Gerald S. Rozmestor be imprisoned by confinement and committed to the custody of the Florida Department of Corrections for a term of four years. You are not entitled to the time in this matter as you received the time that you were in jail while waiting trial in Docket Number 78-1904. Two years of this sentence will be served concurrently with the sentence imposed on January 11, 1979. And Count II and III will be served consecutively with each other to a five year sentence with Count II and three years with Count III. Two of this four year sentence here will be served concurrently with those and two of these sentences will be served consecutively with those.
The judgment appealed from provides:
. . . it is the sentence of the law and judgment of the Court that you Gerald S. Rozmestor be imprisoned by confinement and committed to the custody of the Florida Department of Corrections for a term of four years less 0 days heretofore served in the Volusia County jail, and the first two years of this sentence shall be served concurrently with any other sentence imposed by any other court, and the remainder of this sentence shall be served consecutively thereto . . .
The appellant in this case was convicted of attempted burglary as charged in a one count information. The record does not show the nature of the convictions in January of 1979 referred to by the judge. However, the sentence for at least one count was five years. Thus, appellant's present 4 year sentence will be broken up by the last three years of the prior sentence before the final two years commence to run.
Unless there is specific statutory authority to impose a sentence, it cannot stand. Brown v. State, 152 Fla. 853, 13 So.2d 458 (1943). Wright v. State, 348 So.2d 633, 634 (Fla. 3rd DCA 1977). And the language susceptible of differing constructions shall be construed most favorably to the accused. § 775.021(1), Fla.Stat. (1979). A defendant convicted of two or more offenses not charged in the same information shall serve the sentences imposed consecutively unless the court directs that some or all be served concurrently. § 921.16(1), Fla.Stat. (1979). The statute provides for concurrent sentences or consecutive sentences, but not a combination. Divided or non-consecutive sentences have been uniformly disapproved in this state. In State v. Coleman, 149 Fla. 28, 5 So.2d 60 (Fla.1941) a prisoner was released shortly after she...
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Cannon v. Jones, Case No.: 3:14cv348/MCR/EMT
...that "[w]hether consecutive or concurrent the prisoner must be allowed to serve his sentence seriatim. . . ." Rozmestor v. State, 381 So. 2d 324, 326 (Fla. 5th DCA 1980). In other words, "a prison sentence imposed partly concurrent with and partly consecutive to another prison sentence is i......
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Billups v. State
...See Stroman v. State, 837 So.2d 1070 (Fla. 2d DCA 2003) ; Preyer v. State , 575 So.2d 748 (Fla. 5th DCA 1991) ; Rozmestor v. State , 381 So.2d 324 (Fla. 5th DCA 1980). None of these cases concerned sentences where a defendant was released from incarceration as in Segal and Coleman . None of......
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Gordon v. State
...sentence in one stretch rather than in bits and pieces. See, e.g., Butler v. State, 548 So.2d 780 (Fla. 2d DCA 1989); Rozmestor v. State, 381 So.2d 324 (Fla. 5th DCA 1980). Rather, after the court found Gordon guilty of criminal contempt, it exercised its discretion under Florida Rule of Cr......
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Perez v. State
...rehearing. Perez contends on appeal that his sentence is of the "divided" or "non-consecutive" type disapproved in Rozmestor v. State, 381 So.2d 324 (Fla. 5th DCA 1980). We disagree. The challenged sentence in Rozmestor required the defendant's four-year term of imprisonment to run concurre......