Opinion
No. 91-1258.
July 2, 1992. Rehearing and Rehearing En Banc Denied September 14, 1992.
Appeal from the Circuit Court, Osceola County, Belvin Perry, Jr., J.
James B. Gibson, Public Defender, and M.A. Lucas, Asst. Public Defender, Daytona Beach, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Nancy Ryan, Asst. Atty. Gen., Daytona Beach, for appellee.
The defendant had a criminal case scheduled for trial at the time he was sentenced on another case and appeals claiming that under Clark v. State, 572 So.2d 1387 (Fla. 1991), he was entitled to be sentenced at the same time on both cases. Unlike Foster v. State, 576 So.2d 937 (Fla. 5th DCA 1991), where the defendant offered to plead guilty on two other cases so that he could be sentenced under a common scoresheet with the first case, the defendant in this case did not offer to plead guilty on the pending case and we follow Joyce v. State, 586 So.2d 456 (Fla. 2d DCA 1991), and that portion of Clark v. State that recognizes that under Florida Rule of Criminal Procedure 3.701d.1., an offense is generally not "pending" for guidelines sentencing purposes unless a verdict or plea of guilty or nolo contendere has been obtained.
However, we set aside the sentences relating to Counts II and IV in Case Number CR90-1312 because the record on appeal is not clear and we cannot determine and resolve a controversy between the State and the defendant as to whether or not there is a conflict in the oral pronouncement of the trial court and the written sentences relating to whether the 12 year incarceration sentences imposed in those counts were to run concurrent or consecutive. The written sentences of two 12 year incarcerative periods to run consecutive constitutes 24 years incarceration which exceeds the 5 1/2-12 year permitted guidelines range sentence.
We affirm the convictions and the sentences other than to Counts II and IV which sentences we vacate and remand the cause for resentencing on those counts.
CONVICTIONS AND SENTENCES AFFIRMED, except as to Counts II and IV which are vacated with REMAND FOR RESENTENCING.
PETERSON, J., concurs.
DAUKSCH, J., dissents with opinion.
I respectfully dissent.
In my opinion the sentencing court should have granted the motion of appellant to delay sentencing. This is within the spirit, at least, of the sentencing guidelines and the supreme court's rulings on them. All crimes were allegedly committed about the same time and charged contemporaneously and thus should all be disposed of at one sentencing.