Thomas v. State

• Decision Date: 13 January 2006
• Docket Number: No. 2D04-2858.,2D04-2858.
• Citation: 921 So.2d 657
• Parties: Terry Lee THOMAS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

921 So.2d 657

Terry Lee THOMAS, Appellant, v. STATE of Florida, Appellee.

No. 2D04-2858.

District Court of Appeal of Florida, Second District.

January 13, 2006.

Rehearing Denied March 1, 2006.

Jackson S. Flyte, Bartow, for Appellant.

Charles J. Crist, Jr., Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.

FULMER, Chief Judge.

Terry Lee Thomas appeals from an order granting the State's motion to correct illegal sentence. We agree with Thomas that the trial court improperly altered his sentence and, therefore, reverse.

In case number 01-7082, a jury found Terry Lee Thomas guilty of battery on a law enforcement officer and resisting an officer with violence. At the sentencing hearing, Thomas pleaded no contest to additional offenses in three cases: in case number 01-3306, to possession of a firearm by a convicted felon; in number 02-5267, to possession of a firebomb; and in number 02-5786, to false imprisonment and battery.

The no contest pleas were entered pursuant to a written agreement which provided that each third-degree felony was to be enhanced under the habitual offender statute to ten years in prison with a concurrent five-year prison releasee reoffender enhancement. There was to be no habitual offender enhancement for the possession of a firearm charge, a second-degree felony, and Thomas was to receive three years for that offense, as a minimum mandatory. Of significance, the plea agreement contained the provision that "[a]ll sentences will be co-terminus."

The trial court accepted the pleas and, pursuant to the agreement, sentenced Thomas as follows: (1) in 01-3306, "to three years minimum mandatory Florida State Prison"; (2) in 02-5267, to "ten years as a habitual felony offender with five years of that as a prison releasee reoffender"; (3) in 02-5786, to "ten years Florida State Prison, five years of that as a prison releasee reoffender" for the false imprisonment and to time served on the battery. In 01-7082, the case where Thomas was tried and convicted, the court sentenced him on both counts to serve ten years in prison as a habitual felony offender and five of those years as a prison releasee reoffender. Every sentence on all four cases was to run concurrent with each other, and the court stated, "they will all be co-terminous." The written sentencing document for case number 01-7082 shows the sentence in that case was to run concurrent with the sentence in 01-3306 followed by the words "AND CO-TERMINUS." The written sentencing documents for 02-5267 and 02-5786 show the sentences in those cases were to run concurrent with the sentence in 01-7082 followed by the words "AND CO-TERMINUS."

On May 14, 2004, the State filed in the trial court a motion to correct Illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a), arguing that the sentences imposed were illegal. The State's motion asserted:

There is no logical manner in which a 10 year HFO sentence with a 5 year PRR mandatory minimum can be "co-terminous" with a three year mandatory minimum sentence in CF01-03306A-XX and still qualify as a legal sentence. The Department [of Corrections] has requested an Amended Judgment and Sentence for all cases involved.

A hearing on the motion was held on May 28, 2004. At the hearing, Thomas's attorney, Mr. Abaray, objected to the State's intent to call Thomas's previous attorney, Mr. Sullivan, as a witness. The court denied the objection. The State called Mr. Sullivan, who testified that, from what he could remember, the coterminous provision was put into the plea agreement because he wanted to make sure Thomas got the same amount of jail credit, the maximum amount, on each of the four cases. Since that time, Mr. Sullivan came to understand that coterminous meant that the sentences all ended at the same time. He did not remember exactly what he thought the term meant at the time of the sentencing.

The assistant state attorney, Mr. McNeal, told the court he did not believe Mr. Sullivan inserted the coterminous provision into the plea agreement "as an example of slick lawyering." Mr. McNeal then argued the sentence was illegal because he did not envision that the result would be a three-year sentence for Thomas. He asked the court to amend the judgment and sentence to enforce the plea agreement without the word "coterminous." The court asked if it could do that without violating double jeopardy. Mr. McNeal argued that the court could correct an illegal sentence at any time. The court noted that Thomas received a three-year minimum mandatory sentence for the possession of a firearm conviction and stated that the sentence was not proper because "there was no finding of actual possession." The court suggested that the State just dismiss the possession of a firearm charge, but Mr. McNeal indicated that the court could not vacate the charge unless Thomas filed a motion to vacate.

Mr. McNeal was questioned by the defense counsel. He stated that at the time he agreed to the coterminous provision, he did not understand what coterminous meant. He had never heard that term before. He did not do any research to determine the meaning of the term within thirty days after the sentencing. Personnel from the Department of Corrections (DOC) contacted Mr. McNeal to get the sentence corrected, "and that's what got this ball rolling." Mr. McNeal told the court that DOC would release Thomas after three years pursuant to the sentencing documents. The court stated, "No they're not." The court indicated "extreme displeasure," telling the parties that that "[i]f he gets out at three, it's a travesty" and "a joke." The court then stated: "I'll tell you what I'm gonna do and you've got thirty days to appeal it. I'm gonna vacate the three year minimum mandatory sentence on the gun possession because it's an illegal sentence. The other . . . sentence stands as previously entered." The defense objected. The court's written order of May 28, 2004, pertains only to case number 01-3306 and indicates that the motion to correct illegal sentence is granted and the sentence of February 6, 2003, is vacated.

On appeal, Thomas argues that the sentence was not subject to correction pursuant to rule 3.800(a) because it was not an illegal sentence. The State acknowledges that the trial court erred in vacating the three-year mandatory sentence in case number 01-3306 and asserts that that sentence was not illegal, but the State argues that the trial court was right in granting the State's motion to correct illegal sentence because the coterminous provision in the original sentence was illegal. The State urges this court to remand for reinstatement of the original three-year minimum mandatory in case number 01-3306 and for deletion of the coterminous provision from all sentencing documents.

We conclude that the original sentence, although it may have been improper, was not an illegal sentence as that term is currently understood. See Carter v. State, 786 So.2d 1173 (Fla.2001); Robinson v. State, 757 So.2d 532, 533 (Fla. 4th DCA 2000) (discussing types of sentences that can be corrected by rule 3.800(a)). In Moore v. Pearson, 789 So.2d 316 (Fla. 2001), the supreme court discussed coterminous sentences in a case brought by a prisoner to enforce a sentence imposed pursuant to a plea agreement. Pearson was sentenced as a habitual offender under...