NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
JAY LARSON, ) ) Appellant, ) ) v. ) Case No. 2D17-336 ) STATE OF FLORIDA, ) ) Appellee. ) )
Opinion filed April 20, 2018.
Appeal from the Circuit Court for Hillsborough County; Michelle Sisco, Judge.
Jay Larson, pro se.
Pamela Jo Bondi, Attorney General, Tallahassee, and Tonja Vickers Rook, Assistant Attorney General, Tampa, for Appellee.
BLACK, Judge.
Jay Larson appeals from the order denying his motions for postconviction
relief. We reverse the denial as to one issue, affirm as to the remaining issues, and
remand with instructions to permit Larson to withdraw his plea. Larson filed a timely motion for postconviction relief in three 2012 cases
which were resolved via a negotiated plea agreement that required the sentences in
those cases to be served concurrently. In the initial motion, filed pursuant to Florida
Rule of Criminal Procedure 3.850, Larson raised three claims of ineffective assistance
of trial counsel. He filed two subsequent motions during the pendency of the first
motion, supplementing the initial motion and raising claims related to those presented in
the initial motion. See Fla. R. Crim. P. 3.850(e); Pritchett v. State, 884 So. 2d 417, 418
(Fla. 2d DCA 2004). As relevant to our decision, the second subsequent motion raised
the issue of counsel's failure to advise Larson that unless his 2012 sentences were
ordered to be served concurrently with the sentences in his 2001 and 2003 cases—
which Larson was serving on conditional release when he was arrested, charged, and
convicted in the 2012 cases—the 2012 sentences would be served consecutively to the
2001 and 2003 sentences as required by section 921.16, Florida Statutes (2012).
Larson argued that had he known his 2012 sentences would run consecutively to his
sentences in the prior cases, he would not have entered the plea. He argued both that
he was affirmatively misadvised that the sentences would be concurrent and that
counsel failed to advise him of a direct consequence of his plea—that his new
sentences would be served consecutively to his existing sentences on the prior cases
unless otherwise ordered by the trial court.
At the postconviction hearing, Larson testified that on multiple occasions
he advised counsel that he was serving his 2001 and 2003 sentences on conditional
release. Further, Larson testified that because counsel knew that Larson was serving
his existing sentences on conditional release, it was incumbent upon counsel to advise
-2- him of any direct consequences of his plea agreement in the 2012 cases. Larson
contended that he was entitled to know prior to entering his plea if his sentences in the
2012 cases would be served consecutively to the sentences in his prior cases.
As to the affirmative misadvice claim, however, Larson testified that he
could not say that he specifically confirmed with counsel that his sentences in the 2012
cases would run concurrently with his existing sentences but that because "concurrent
means concurrent," he entered his plea believing that all of his sentences would be
served concurrently.
Larson then explained that in 2013, about a year into his prison term, he
received notice of a new release date. He then inquired with the Department of
Corrections (DOC) as to why his release date had been pushed back, extending his
time in prison. The DOC advised Larson that because the trial court had not specified
that his 2012 sentences were to be served concurrently with his 2001 and 2003
sentences the sentences would be served consecutively, citing section 921.16.
Larson's trial counsel also testified at the hearing. Counsel denied being
informed that Larson was serving his prior sentences on conditional release. He
testified that if Larson had advised him that he was on conditional release, counsel
would have included that information in his notes. Counsel testified that he was not
specifically asked by Larson whether the sentences in his 2012 cases would run
concurrently with the sentences on his prior cases. Counsel stated that they discussed
only the 2012 cases at the plea hearing.1 Counsel also testified that at the time of
1We note that Larson's prior cases were discussed at the plea hearing as they formed the basis for his designation as a prison releasee reoffender. Larson's
-3- Larson's plea counsel had not been aware that the sentencing court could have ordered
that the 2012 sentences were to be served concurrently with the sentences which
Larson had been serving on conditional release. Larson's conditional release status
was not mentioned by counsel, the prosecutor, Larson, or the court on the record at the
plea hearing.
As pertinent to our resolution of this appeal, in its order denying Larson's
motions, the postconviction court found that Larson did not advise counsel that he was
on conditional release at the time the 2012 cases were at issue and that counsel had
advised Larson only that the 2012 sentences would run concurrently. The court
therefore found that there was no misadvice and that counsel did not perform
deficiently. These findings are supported by competent substantial evidence. See
State v. Hatton, 143 So. 3d 1006, 1007 (Fla. 2d DCA 2014).
However, Larson's second subsequent motion also raised the issue of
counsel's failure to advise him of the direct consequences of his plea. Despite citing
counsel's testimony that he had not known at the time of Larson's plea that there was a
means by which the sentencing court could have imposed Larson's 2012 sentences to
run concurrently with his 2001 and 2003 sentences—and therefore could not have
advised Larson of the possibility—the postconviction court denied the motion. Implicitly
then, because the court determined that counsel was not ineffective for advising Larson
only as to the 2012 cases, the court found that the structuring of Larson's 2012
penitentiary packet was introduced at the plea hearing and sentencing, and it indicates that Larson was on conditional release in 2011.
-4- sentences with his existing sentences was a collateral rather than direct consequence
of Larson's plea.
On appeal, Larson raises multiple issues but we need address only one:
Larson's contention that the postconviction court erred in denying his second
subsequent motion because the structuring of Larson's 2012 sentences with his existing
sentences is a direct consequence of his plea, which he must be advised of in order for
his plea to be voluntary. Larson argues, in part, that the application of the mandatory
language of section 921.16(1), in the absence of a determination by the trial court, to
establish the structure of his sentences—whether they are to be served concurrently or
consecutively—has a definite and immediate effect on his plea in this case. Thus, in
considering Larson's claim, we must determine whether the imposition of consecutive
sentences for offenses not charged in the same information is—in the absence of a
judicial determination and therefore based on statute—a direct consequence. We
conclude that it is.
Preliminarily, we note that this issue is cognizable in a rule 3.850 motion.
See, e.g., Platt v. State, 664 So. 2d 307, 308 (Fla. 2d DCA 1995) (affirming denial of
rule 3.800(a) motion without prejudice to the filing of a rule 3.850 motion raising the
issue of consecutive sentencing to a control-release violation which resulted in a longer
sentence than discussed at the probation violation plea hearing); Widemond v. State, 27
So. 3d 162, 163 (Fla. 1st DCA 2010) (reversing summary denial of claim that "counsel
was ineffective for failing to present to the court case law standing for the proposition
that the trial court could impose his sentence concurrently" with an existing sentence);
Wilson v. State, 873 So. 2d 419, 420-21 (Fla. 3d DCA 2004) (remanding for clarification
-5- and stating that if the court ordered Wilson's 2001 sentence to run consecutively to his
1994 sentence, Wilson would be allowed the opportunity to withdraw his plea pursuant
to rule 3.850 as involuntarily entered). And, as this court has stated, although the claim
may be couched in terms of ineffective assistance of counsel, the issue is truly whether
the plea was entered involuntarily. See Knight v. State, 611 So. 2d 602, 602 (Fla. 2d
DCA 1993).
Turning to the merits, the Florida Supreme Court has stated that "[t]he
voluntariness of a plea depends on whether the defendant is aware of the direct
consequences of the plea and those consequences listed in Florida Rule of Criminal
Procedure 3.172(c)." State v. Partlow, 840 So. 2d 1040, 1042 (Fla. 2003). A "direct
consequence" of a plea is one which results in "a definite, immediate and largely
automatic effect on the range of the defendant's punishment." Major v. State, 814 So.
2d 424, 431 (Fla. 2002). Rule 3.172(c) requires the trial court to determine that the
defendant understands "[t]he complete terms of any plea agreement, including
specifically all obligations the defendant will incur as a result." Fla. R. Crim. P.
3.172(c)(7).
The "[f]ailure to advise a defendant of the direct consequences of entering
a plea 'prohibits [him or her] from rendering a truly voluntary and knowledgeable waiver
of the constitutional rights inherent in the plea arrangement.' " State v. Yeomans, 172
So. 3d 1006, 1009 (Fla. 1st DCA 2015) (second alteration in original) (quoting State v.
Green, 421 So. 2d 508, 509 (Fla. 1982)). Further, a trial judge is obligated "to ensure
that the defendant understands the direct consequences of his plea," including "those
consequences of the sentence which the trial court can impose." State v. Ginebra, 511
-6- So. 2d 960, 961 (Fla. 1987), superseded on other grounds by In re Amendments to Fla.
Rules of Crim. Pro., 536 So. 2d 992 (Fla. 1988), as recognized in State v. De Abreu,
613 So. 2d 453 (Fla. 1993).
It is not disputed that Larson was on conditional release when he pleaded
to and was sentenced on the 2012 charges.
Conditional release is a post-prison supervision program where an inmate is placed on community supervision for a period of time equal to the amount of gain time the prisoner earned while in prison. See § 947.1405, Fla. Stat. (2008); Logan v. State, 964 So. 2d 209 (Fla. 5th DCA 2007). The Florida Parole Commission oversees the program, and retains jurisdiction over the defendant until his or her conditional release supervision terminates. Gillard v. State, 827 So. 2d 316, 317 (Fla. 1st DCA 2002). During that time, upon violation of any of the terms and conditions of release, the Commission may revoke the conditional release. § 947.141(4), Fla. Stat. (2010) ("[T]he [Commission] panel may revoke conditional release . . . and thereby return the releasee to prison to serve the sentence imposed . . . .").
Crump v. State, 137 So. 3d 1148, 1149-50 (Fla. 3d DCA 2014).
Conditional release is part of an existing sentence. See Scantling v.
State, 711 So. 2d 524, 525 (Fla. 1998). Therefore, "[u]pon violation of conditional
release, a defendant is not resentenced; rather the Parole Commission makes an
administrative determination regarding conditional release, which leaves the original
sentence undisturbed." Shorter v. State, 113 So. 3d 940, 941 (Fla. 5th DCA 2013)
(citing Fla. Admin. Code R. 23–23.011, concerning the procedure for the revocation of
conditional release); see also Chandler v. State, 1 So. 3d 284, 286 n.1 (Fla. 2d DCA
2009) ("If a defendant violates a condition of his or her release before the expiration of
his or her full, pronounced prison term, gain time and release are revoked and the
defendant may be reincarcerated for the balance of his or her sentence." (emphasis
-7- added)); accord Logan v. State, 964 So. 2d 209, 210 (Fla. 5th DCA 2007).
"[P]unishment for a control-release violation is not an as-yet undetermined sentence,
and therefore a court can order a new sentence to run consecutive[ly] to such
punishment." Scantling, 711 So. 2d at 525-26. Likewise, the court can order a new
sentence to run concurrently with the punishment for a control-release violation.
Shorter, 113 So. 3d at 941 ("[T]he defendant is already subject to a sentence, [and] a
court can order a new sentence to run consecutively or concurrently to such a
sentence."); see also Bruce v. State, 679 So. 2d 45, 46 (Fla. 3d DCA 1996) ("[T]he
legislature has vested the trial court with discretion in criminal cases to impose either
concurrent or consecutive sentences in independent cases." (citing § 921.16(1), Fla.
Stat. (1993))).
The decision to revoke conditional release is an administrative
determination and, as such, is collateral to the plea. See Scantling, 711 So. 2d at 526
("An as-yet undetermined action of the Parole Commission is not a sentence. Rather,
the Commission's action is an administration determination as to how an inmate's
control-release violation affects his status within the context of the sentence he has
already received."). However, "[e]ven where no decision has been made on the
control[-]release violation by the time of sentencing, the trial court still has the discretion
to run the [new] sentence either concurrently or consecutively to" the existing sentence.
McCarthur v. State, 766 So. 2d 292, 293 (Fla. 4th DCA 2000); accord Widemond, 27
So. 3d at 163; see also Richardson v. State, 947 So. 2d 1219, 1220 (Fla. 1st DCA
2007) ("[A] trial court may order a sentence to run concurrently or consecutively to a
-8- pending control-release violation." (citing Scantling, 711 So. 2d at 525-26)). And it is the
structure of the sentences that constitutes the alleged direct consequence here.
In the absence of a directive from the trial court that sentences in
otherwise independent cases are to be served concurrently, the statute requires that
those sentences "shall be served consecutively." § 921.16(1) (emphasis added). That
is, "[s]entences of imprisonment for offenses not charged in the same indictment,
information, or affidavit shall be served consecutively unless the court directs that two or
more of the sentences be served concurrently." Id. (emphasis added). Therefore,
where the trial court does not impose the structure of a new sentence in relation to
existing sentences, the requirement of section 921.16(1) that the sentences be served
consecutively automatically applies to the new sentence.
Here, the failure of both the trial court and counsel to recognize the
ramifications of section 921.16(1) on the structure of Larson's new sentences with his
existing sentences resulted in a definite, immediate, and automatic effect: the sentences
must be served consecutively, and the new sentences cannot begin to run until the
existing sentences—whatever their length—have been served.2 See Odegaard v.
State, 137 So. 3d 505, 508 (Fla. 2d DCA 2014) (reversing a postconviction order where
2Additionally,counsel's lack of knowledge that Larson was still serving the 2001 and 2003 sentences resulted in counsel's failure "to consider the impact of the prior sentences on the latter sentences, namely that [Larson's] plea of guilty would result in consecutive sentences." See Tate v. State, 758 So. 2d 1188, 1189 (Fla. 3d DCA 2000). Consideration of the prior sentences on the latter sentences would have required counsel's "legal analysis of the consequences of the plea"; the "failure to fully advise [Larson] of those consequences was 'a substantial and serious deficiency measurably below that of competent counsel.' " See id. (quoting Castro v. State, 419 So. 2d 796, 798 (Fla. 3d DCA 1982)).
-9- neither the court nor counsel advised the defendant that he faced the possibility of
consecutive sentences in separate cases—his new offense and his community control
violation—stating "[u]nquestionably, a plea cannot be knowing and voluntary if the
defendant does not understand all direct consequences of the plea, including those that
affect the range of punishment"). And although the length of those consecutive
sentences may not be definite where the conditional-release violation is pending, that
the sentences shall be served consecutively—that the new sentences cannot begin
being served until the existing sentences have been completed—is definite and
automatic in the absence of the trial court's exercise of discretion. Because only the
court may impose sentences, the structure of the sentence is determined by the trial
court or—as in this case—by operation of statute, and it is a direct consequence of the
plea. Cf. Reyna v. State, 18 So. 3d 1131, 1133 (Fla. 2d DCA 2009) ("Credit for time
served, or jail credit, is a direct consequence of a plea because it affects the range of
punishment—in this case, the length of Mr. Reyna's incarceration—in a definite manner,
immediately and automatically upon imposition of a sentence."); Colon v. State, 199 So.
3d 960, 962 (Fla. 4th DCA 2016) ("The application of jail credit to the sentences as they
were structured was a direct consequence of the plea, and appellant claims he had no
notice that the DOC would calculate his sentence on the basis of the lesser charge.");
Gusow v. State, 6 So. 3d 699, 701 (Fla. 4th DCA 2009) ("The sentence the defendant
might receive if he violated his probation was collateral to the plea—it was not 'definite,
immediate,' and 'largely automatic.' ").
We note that in Crump, the Third District affirmed the denial of a rule
3.850 motion where Crump argued that the intent of his plea agreement in a 2010 case
- 10 - had been thwarted by a post-plea forfeiture of his gain time in a 1995 case for which he
had been on conditional release when charged with the 2010 crimes. 137 So. 3d at
1149. When Crump began serving his 2010 sentences, he was advised by the DOC
that all of his gain time in the 1995 case had been forfeited. The Crump court
concluded that "[w]here a longer imprisonment results from a forfeiture of gain time
awarded in a separate case not considered by the court sentencing after a plea in a
different case, the defendant cannot claim the forfeiture breaches the plea agreement."
Id. at 1150-51. The court reasoned, "the [DOC] has sole discretion in awarding or
revoking an inmate's gain time, and the courts have no authority to countermand the
[DOC]'s forfeiture of gain time." Id. at 1151. The Third District affirmed the order of
denial without prejudice to Crump's ability to challenge the forfeiture in the appropriate
administrative proceedings. Id. The Crump decision does not address pending
conditional-release violations, Scantling, or section 921.16. This may be because the
DOC advised Crump that his gain time had been forfeited rather than that his sentences
were required to be served consecutively pursuant to section 921.16.3 Here, the DOC
advised Larson that by operation of law his sentences in the 2012 cases would be
served consecutively to the 2001 and 2003 sentences. The DOC made no reference to
gain time. And while it is true that the DOC has sole discretion in awarding or revoking
gain time, the issue before this court is not the conditional-release violation or any
revocation of gain time. Rather, the issue before this court is the voluntariness of the
3Wenote that the case relied upon in the Crump decision for its holding does not address control or conditional release. 137 So. 3d at 1150-51 (citing State v. Jackson, 842 So. 2d 1040 (Fla. 3d DCA 2003)).
- 11 - plea in the 2012 cases where Larson was not made aware of the definite, immediate,
and automatic effects of section 921.16 on Larson's sentence.
Accordingly, we reverse the order denying Larson's motions for
postconviction relief inasmuch as it incorrectly determined that the application of section
921.16(1) to the structure of Larson's sentences was not a direct consequence of his
plea. Our reversal of the postconviction order on this ground renders it unnecessary for
us to address Larson's additional arguments on appeal. However, we must address the
procedure on remand.
Unlike the cases of Horton v. State, 976 So. 2d 686, 686 (Fla. 2d DCA
2008), and Bruce, 679 So. 2d at 46, it is not clear that the trial court would have
imposed concurrent sentences had it been aware that Larson was serving his existing
sentences on conditional release. Nor is it clear that the concurrent sentences would
have been a condition of the plea agreement. As such, we cannot simply reverse and
remand for correction of the sentences.
Because the failure to advise Larson of a direct consequence of his plea
rendered his plea involuntary, the relief to which Larson is entitled is the ability to
withdraw his plea. See Yeomans, 172 So. 3d at 1009. Larson is not entitled to be
resentenced. See Carter v. State, 67 So. 3d 242, 244 (Fla. 2d DCA 2010).4
4In the context of a rule 3.850 motion raising this issue, at least one court has held that "[b]ecause the trial court could not have made a decision on whether [the defendant's] sentence should run concurrently or consecutively absent knowledge of the true status of his prior sentence . . ., we remand for a determination as to whether the [sentence] in this case is to run concurrent with or consecutive to the [prior sentence]." Wilson, 873 So. 2d at 420-21. While we understand the rationale behind such remand instruction, we do not believe it is consistent with postconviction case law.
- 12 - If Larson elects on remand to withdraw his plea he will be facing a
significantly longer prison term than that which he is currently serving, and the State is
under no obligation to offer another plea agreement.5 We note, however, that the State
could agree that Larson may serve his new sentences concurrently with his existing
sentences and that the court may resentence Larson accordingly. See Carter, 67 So.
3d at 244.
Affirmed in part; reversed in part; remanded with instructions.
CASANUEVA and BADALAMENTI, JJ., Concur.
5The plea forms in Larson's 2012 cases indicate that Larson qualified as a prison releasee reoffender, a violent career criminal, and a habitual felony offender.
- 13 -