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Johnson v. State

Florida Court of Appeals, First District

September 12, 2019

Cortez Kwame Johnson, Appellant,
v.
State of Florida, Appellee.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          On appeal from the Circuit Court for Escambia County. John L. Miller, Judge.

          Andy Thomas, Public Defender, and A. Victoria Wiggins, Assistant Public Defender, Tallahassee, for Appellant.

          Ashley Moody, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.

          M.K. Thomas, J.

         Cortez Johnson appeals an order denying his motion for post-conviction relief under Florida Rule of Civil Procedure 3.850. He claims his sentence is illegal, and trial counsel was ineffective for failing to fully advise him regarding sentencing. We affirm.

         After charging Johnson with multiple offenses, the State extended a plea offer of fifteen years. Johnson and his counsel discussed the minimum possible sentence of ten years and the statutory maximum. Johnson's counsel advised, based on previous sentencing patterns, that the trial court may be lenient and sentence him below the State's offer. Counsel claimed he discussed the drawbacks of a straight up plea, that it may result in a longer sentence, and that the sentencing decision was ultimately up to the trial court. Yet, Johnson declined the State's plea offer.

         Thereafter, Johnson pled no contest in a straight up plea to the State charges. His trial counsel requested that the state sentences run concurrently with a ten-year federal prison sentence Johnson was currently serving. The trial court granted counsel's request, and Johnson was sentenced to twenty years in state prison to be served concurrent to his federal sentence. But after sentencing on the state charges, Johnson was moved out of federal prison and into the state prison system to begin serving his state sentence. As a result, Johnson is slated to serve a total of thirty years as he receives no credit against his federal sentence while in state custody.

         Johnson filed an Amended Motion for Post-Conviction Relief under Florida Rule of Criminal Procedure 3.850. He asserts his sentence was illegal because he was forced to serve his state prison sentence first and then afterward, begin serving his federal sentence, thus, nullifying the condition that the state and federal sentences be served concurrently. He also claims trial counsel was ineffective for failing to properly advise him regarding his sentence. The trial court denied Johnson's motion.

         On appeal, Johnson argues the trial court erred in denying his 3.850 motion because, although the trial court lacked the authority to order the Department of Corrections to allow him to serve his state sentence in a federal prison, the trial court had the authority to vacate the imposed concurrent state sentence, and then either impose a suspended sentence of ten years, enter a sentence of time served allowing him to proceed to federal prison, or allow him to withdraw his plea. We disagree.

         Regarding concurrent sentences, Florida Statutes dictate:

A county court or circuit court of this state may direct that the sentence imposed by such court be served concurrently with a sentence imposed by a court of another state or of the United States, or for purposes of this section, concurrently with a sentence to be imposed in another jurisdiction. In such case, the Department of Corrections may designate the correctional institution of the other jurisdiction as the place for reception and confinement of such person and may also designate the place in Florida for reception and confinement of such person in the event that confinement in the other jurisdiction terminates before the expiration of the Florida sentence.

§ 921.16(2), Fla. Stat. Further, "[a]lthough trial courts have the statutory authority to impose a sentence that is to be served concurrently with a sentence imposed by another state or federal court, the Department of Corrections has discretionary authority regarding the placement of an inmate sentenced to serve multiple sentences." Davis v. State, 852 So.2d 355, 357 (Fla. 5th DCA 2003). Hence, a sentence is not necessarily illegal on the basis that the sentencing judge lacks the authority to impose it. Courts have held, "an order providing that a state sentence is to be served concurrently with a federal sentence is really only a recommendation." Id.; accord Napolitano v. State, 875 So.2d 1290 (Fla. 3d DCA 2004); Doyle v. State, 615 So.2d 278 (Fla. 3d DCA 1993), rev. denied, 629 So.2d 132 (Fla. 1993), cert. denied, 511 U.S. 1007 (1994).

         Thus, Johnson's concurrent sentence was merely a recommendation by the sentencing judge and the discretion to determine how and where the sentence would be served belonged to the Department of Corrections. Johnson relies on Rodgers v. State, 76 So.3d 349 (Fla. 3d DCA 2011) to demonstrate that appellate courts have granted relief in the form of a 3.850 motion to allow sentences to be served as originally intended. However, the appellant in Rodgers entered a guilty plea and was given a state sentence to be served concurrent to a federal sentence. Id. at 349. The court in Rodgers is silent as to whether Rodgers' guilty plea was entered as part of a plea bargain or conditioned upon a certain sentence being imposed. However, it can be inferred, given the court's reliance on Glenn v. State, 776 So.2d 330, 331 (Fla. 4th DCA 2001) ("Where a condition of a guilty plea is that the defendant will serve the agreed-upon state sentence in federal prison concurrently with a longer federal sentence, the defendant is entitled to post conviction relief if the terms of agreement are not met."), that there was a condition attached to Rodgers' guilty plea which was not present in the instant case. Id. ...


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