Conard v. State

397 So. 2d 1158, 1981 Fla. App. LEXIS 19104

• Court: District Court of Appeal of Florida
• Decided: April 1, 1981
• Docket: No. 80-272
• Status: Published

Opinion

COBB, Judge.

This is a timely appeal from the judgments and sentences entered after appellants were convicted after trial by jury of nine counts of selling unregistered securities, nine counts of fraudulently selling securities, and one count of scheming to defraud each, in violations of sections 517.07, 517.302, 517.301, 817.035(2), Florida Statutes (1977). According to appellants, the total terms of the sentences are unclear from the record on appeal. The charges and convictions arose from a worm farm scam.

The defendants were sentenced in the following manner:

Defendants moved for correction or reduction of sentence on the grounds that they were in doubt as to the intent of the court and were of the understanding that the court intended to impose a total sentence of 10 years. This motion was denied. The trial judge’s notes, dated February 7, 1980, show Counts 7, 10, and 19 as consecutive, and show all the other counts as concurrent; while a second note dated February 27, 1980, does not refer to the specific counts by number and does not shed any light on the issue.

The Department of Corrections has interpreted the above sentences as an aggregate of twenty years. The appellants contend it is no more than fifteen years. The state conceded, on oral argument, that the wording of the sentences is ambiguous and should be clarified by the trial court. The appellants point out, inter alia, that there is no logical way for the five years imposed for Count I to run concurrently with the sentences for all of the other; counts, three of which (Counts 7,10 and 19)' were designated as consecutive sentences.

The appellants' remaining point on appeal, the claim that the trial judge erred in denying a mistrial motion,¹ is patently without merit.

Accordingly, we affirm the convictions but remand to the trial court for entry of clarified and logically consistent sentencés. It shall not be necessary for the appellants to be present at resentencing. See Campbell v. State, 379 So.2d 1011 (Fla. 4th DCA 1980).

ORFINGER and SHARP, JJ., concur.

1 . In reading the 19-count information to the sworn panel, the trial judge paused after Count Ten and said: “Ten down, and nine to go,” before reading on. Defense counsel moved for a mistrial, but refused the trial court’s offer of a corrective instruction to the jury to ignore the comment.