final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Escambia County. John L.
Thomas, Public Defender, and A. Victoria Wiggins, Assistant
Public Defender, Tallahassee, for Appellant.
Moody, Attorney General, and Bryan Jordan, Assistant Attorney
General, Tallahassee, for Appellee.
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.
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.
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
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
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.
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).
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. ...