Teffeteller v. State, No. 80-572

CourtCourt of Appeal of Florida (US)
Writing for the CourtFRANK D. UPCHURCH, Jr.; DAUKSCH, C. J., and COWART
Citation396 So.2d 1171
Docket NumberNo. 80-572
Decision Date15 April 1981
PartiesRobert Allen TEFFETELLER, Appellant, v. STATE of Florida, Appellee.

Page 1171

396 So.2d 1171
Robert Allen TEFFETELLER, Appellant,
v.
STATE of Florida, Appellee.
No. 80-572.
District Court of Appeal of Florida, Fifth District.
April 15, 1981.

Page 1172

James B. Gibson, Public Defender, and Mary Sue Donsky, Asst. Public Defender, Daytona Beach, for appellant.

Jim Smith, Atty. Gen., Tallahassee, and Edwin H. Duff, III, Asst. Atty. Gen., Daytona Beach, for appellee.

FRANK D. UPCHURCH, Jr., Judge.

This is an appeal from a judgment and sentence for aggravated assault. Appellant raises as error the imposition of a sentence to run consecutively with undetermined future sentences. The judgment and sentence stated: "a term of five (5) years less 225 days heretofore served in the Volusia County Jail, to run consecutively with any additional sentences you are or will be serving."

Section 921.16, Florida Statutes (1979), provides that sentences of imprisonment for offenses not charged in the same indictment, information or affidavit shall be served consecutively unless the court directs that two or more of the sentences be served concurrently. See also Benyard v. Wainwright, 322 So.2d 473 (Fla.1975). Here, only one offense was charged in the information and if appellant is presently serving a sentence for another offense, the sentence involved must be served consecutively. Therefore, the language setting the condition that the five year term is "to run consecutively with any additional sentences you are ... serving" can be treated as mere surplusage. Perkins v. Mayo, 92 So.2d 641 (Fla.1957); Rice v. State, 243 So.2d 226 (Fla. 4th DCA 1971).

The trial court was apparently aware of other charges pending against appellant and intended that this five year term commence after the sentences for the other crimes were served. However, as worded, this sentence could commence after the imposition of a sentence for any future unrelated crime. This indefinite commencement of the five year sentence is improper. Wallace v. State, 41 Fla. 547, 26 So. 713 (1899); Keel v. State, 321 So.2d 87 (Fla.2d DCA 1975).

The judgment of conviction is AFFIRMED, the sentence REVERSED and this cause is REMANDED for correction of the sentence.

DAUKSCH, C. J., and COWART, J., concur.

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12 practice notes
  • State v. Brown, No. 91-474
    • United States
    • Court of Appeal of Florida (US)
    • 24 Diciembre 1991
    ...that the defendant thereafter exercised a knowing Page 312 and intelligent waiver of his right to remain silent. Colquitt v. State, 396 So.2d at 1171. In this case the officer's comments merely advised Brown of the charges and circumstances concerning his arrest. The comments were not inten......
  • State v. Pena, No. 1
    • United States
    • Court of Appeals of Arizona
    • 13 Octubre 1983
    ...and sentence upon which the subsequent cumulative sentence is based. Id. at 582, 410 P.2d at 700. See also Teffeteller v. State, 396 So.2d 1171 (Fla.Dist.Ct.App.1981); Keel v. State, 321 So.2d 86 (Fla.Dist.Ct.App.1975); State v. Sturgis, 110 Me. 96, 85 A. 474 Based on the foregoing, we hold......
  • Hummell v. State, No. 96-2799
    • United States
    • Court of Appeal of Florida (US)
    • 9 Mayo 1997
    ...DCA 1994); Smith v. State, 515 So.2d 363 (Fla. 4th DCA 1987); Percival v. State, 506 So.2d 66 (Fla. 2d DCA 1987); Teffeteller, v. State, 396 So.2d 1171 (Fla. 5th DCA 1981); Keel v. State, 321 So.2d 86 (Fla. 2d DCA 1975). Accordingly, we strike that language from Hummell's AFFIRMED in part; ......
  • Smith v. State, No. 87-0662
    • United States
    • Court of Appeal of Florida (US)
    • 12 Noviembre 1987
    ...2d DCA 1985), appeal dismissed, 486 So.2d 596 (Fla.1986); Richardson v. State, 432 So.2d 750 (Fla. 2d DCA 1983); Teffeteller v. State, 396 So.2d 1171 (Fla. 5th DCA 1981); Keel v. State, 321 So.2d 86 (Fla. 2d DCA Accordingly, we remand with instructions that the trial court strike the portio......
  • Request a trial to view additional results
12 cases
  • State v. Brown, No. 91-474
    • United States
    • Court of Appeal of Florida (US)
    • 24 Diciembre 1991
    ...that the defendant thereafter exercised a knowing Page 312 and intelligent waiver of his right to remain silent. Colquitt v. State, 396 So.2d at 1171. In this case the officer's comments merely advised Brown of the charges and circumstances concerning his arrest. The comments were not inten......
  • State v. Pena, No. 1
    • United States
    • Court of Appeals of Arizona
    • 13 Octubre 1983
    ...and sentence upon which the subsequent cumulative sentence is based. Id. at 582, 410 P.2d at 700. See also Teffeteller v. State, 396 So.2d 1171 (Fla.Dist.Ct.App.1981); Keel v. State, 321 So.2d 86 (Fla.Dist.Ct.App.1975); State v. Sturgis, 110 Me. 96, 85 A. 474 Based on the foregoing, we hold......
  • Hummell v. State, No. 96-2799
    • United States
    • Court of Appeal of Florida (US)
    • 9 Mayo 1997
    ...DCA 1994); Smith v. State, 515 So.2d 363 (Fla. 4th DCA 1987); Percival v. State, 506 So.2d 66 (Fla. 2d DCA 1987); Teffeteller, v. State, 396 So.2d 1171 (Fla. 5th DCA 1981); Keel v. State, 321 So.2d 86 (Fla. 2d DCA 1975). Accordingly, we strike that language from Hummell's AFFIRMED in part; ......
  • Smith v. State, No. 87-0662
    • United States
    • Court of Appeal of Florida (US)
    • 12 Noviembre 1987
    ...2d DCA 1985), appeal dismissed, 486 So.2d 596 (Fla.1986); Richardson v. State, 432 So.2d 750 (Fla. 2d DCA 1983); Teffeteller v. State, 396 So.2d 1171 (Fla. 5th DCA 1981); Keel v. State, 321 So.2d 86 (Fla. 2d DCA Accordingly, we remand with instructions that the trial court strike the portio......
  • Request a trial to view additional results

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