Diego v. State

District Court of Appeal of Florida

Diego v. State

716 So. 2d 830, 1998 Fla. App. LEXIS 10860, 1998 WL 537196

CourtDistrict Court of Appeal of Florida

DecidedAugust 26, 1998

DocketNo. 98-629

StatusPublished

This text of 716 So. 2d 830 (Diego v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Diego v. State, 716 So. 2d 830, 1998 Fla. App. LEXIS 10860, 1998 WL 537196 (Fla. Ct. App. 1998).

Pincite

Opinion

ON MOTION FOR REHEARING

PER CURIAM.

We grant the motion for rehearing filed by the appellant, vacate and withdraw the opinion issued in this case on April 8, 1998, and substitute the following opinion for it.

We affirm the trial court’s order denying the appellant’s motion for post-eon-viction relief in all respects except one. We find that the motion should have been granted with respect to appellant’s sentencing error point because it is clear that all of the crimes for which appellant was convicted were a part of one criminal episode. Therefore, the forty-year sentences entered on the armed burglary and kidnapping charges should have been ordered to run concurrently with, rather than consecutive to, the life sentences entered on the armed robbery convictions. See Hale v. State, 630 So.2d 521 (Fla.1993); State v. Ames, 467 So.2d 994 (Fla.1985); Junco v. State, 510 So.2d 909 (Fla. 3d DCA 1987). By failing to object to the consecutive sentencing under these circumstances and thus preserve the error for review, appellant’s trial attorney provided ineffective assistance of counsel and the trial court erred in ruling that this sentencing point was waived because not raised on direct appeal.

The case is reversed and remanded to the trial court with directions to resentenee the appellant in accordance with this opinion.

Free access — add to your briefcase to read the full text and ask questions with AI

ON MOTION FOR REHEARING

PER CURIAM.

We grant the motion for rehearing filed by the appellant, vacate and withdraw the opinion issued in this case on April 8, 1998, and substitute the following opinion for it.

We affirm the trial court’s order denying the appellant’s motion for post-eon-viction relief in all respects except one. We find that the motion should have been granted with respect to appellant’s sentencing error point because it is clear that all of the crimes for which appellant was convicted were a part of one criminal episode. Therefore, the forty-year sentences entered on the armed burglary and kidnapping charges should have been ordered to run concurrently with, rather than consecutive to, the life sentences entered on the armed robbery convictions. See Hale v. State, 630 So.2d 521 (Fla.1993); State v. Ames, 467 So.2d 994 (Fla.1985); Junco v. State, 510 So.2d 909 (Fla. 3d DCA 1987). By failing to object to the consecutive sentencing under these circumstances and thus preserve the error for review, appellant’s trial attorney provided ineffective assistance of counsel and the trial court erred in ruling that this sentencing point was waived because not raised on direct appeal.

The case is reversed and remanded to the trial court with directions to resentenee the appellant in accordance with this opinion.

Cite This Page — Counsel Stack

Bluebook (online)

716 So. 2d 830, 1998 Fla. App. LEXIS 10860, 1998 WL 537196, Counsel Stack Legal Research, https://law.counselstack.com/opinion/diego-v-state-fladistctapp-1998.

Opinion

Related

Cite This Page — Counsel Stack