State v. Moran, 89-1336

• Decision Date: 23 May 1990
• Docket Number: No. 89-1336,89-1336
• Citation: 561 So.2d 685
• Parties: 15 Fla. L. Weekly D1433 STATE of Florida, Appellant, v. Willard J. MORAN, Appellee.
• Court: Florida District Court of Appeals

Page 685

561 So.2d 685

15 Fla. L. Weekly D1433

STATE of Florida, Appellant, v. Willard J. MORAN, Appellee.

No. 89-1336.

District Court of Appeal of Florida,

Fourth District.

May 23, 1990.

Rehearing Denied June 27, 1990.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Celia A. Terenzio, Asst. Atty. Gen., West Palm Beach, for appellant.

Richard L. Jorandby, Public Defender, and Susan D. Cline, Asst. Public Defender, West Palm Beach, for appellee.

DOWNEY, Judge.

Affirmed upon authority of Bernadini v. State, 540 So.2d 132 (Fla. 5th DCA 1989) and State v. Hall, 538 So.2d 468 (Fla. 5th DCA 1989).

WARNER, J., concurs.

HERSEY, C.J., concurs specially with opinion.

HERSEY, Chief Judge, concurring specially.

The assumption behind the holdings in both cases relied upon in our opinion here is that a mandatory minimum sentence of shorter length is subsumed by a guidelines sentence of longer duration. Thus, it is assumed, a portion of the guidelines sentence equivalent to the mandatory minimum sentence must be served even though the trial court did not explicitly impose the mandatory minimum sentence. While it is a mathematical certainty that a three-year term is included within a four and one-half year term, it is not so clear that the mandatory characteristic of the former carries over automatically to the latter. We can expect appellate activity on this aspect of the issue as recently imposed sentences mature. Perhaps the legislature will act or the supreme court will speak before these problems come to fruition.