STATE OF FLORIDA v. KENNETH G. ROGERS

253 So. 3d 1202

Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

STATE OF FLORIDA, ) ) Appellant, ) ) v. ) Case No. 2D16-3470 ) KENNETH G. ROGERS, ) ) Appellee. ) )

Opinion filed August 17, 2018.

Appeal from the Circuit Court for Polk County; Reinaldo Ojeda, Judge.

Pamela Jo Bondi, Attorney General, Tallahassee, and Chelsea S. Alper, Assistant Attorney General, Tampa, for Appellant.

Howard L. Dimmig, II, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellee.

CASANUEVA, Judge.

The State of Florida appeals an order granting Kenneth G. Rogers' motion

to correct an illegal sentence and the ensuing amended sentence. Mr. Rogers alleged

in his motion that his sixty-year prison sentence for one count of attempted sexual battery on a child was in excess of the statutory maximum for a first-degree felony. The

trial court agreed and amended the sentence to thirty years in prison. The State does

not contend that the thirty-year sentence for this count was improper but instead argues

that the trial court erred in refusing to sentence Mr. Rogers for two other counts of

attempted sexual battery on a child. We agree that Mr. Rogers has not yet been

sentenced for the other two offenses and remand for the trial court to impose sentence.

Procedural History

Mr. Rogers originally entered a plea of no contest to three counts of

attempted sexual battery on a child (counts one, two, and three) and three counts of

committing a lewd act on a child (counts four, five and six). Mr. Rogers was sentenced

to fifteen years in prison for counts four, five and six. He was also sentenced to ten

years of probation for counts one, two, and three. The original judgments and

sentences were entered on December 4, 1990.

After a second violation of probation, sentencing documents were filed on

February 18, 2008, reflecting a sentence of sixty years in prison for counts one, two,

and three. Thereafter, the trial court granted a motion to correct sentencing error on

June 17, 2011, based on its finding that the oral pronouncement of the sentence

addressed only count one. Therefore, the court vacated the sentences for counts two

and three, nunc pro tunc to February 18, 2008.

The 2011 order was not appealed, presumably because it correctly

determined that the trial court did not pronounce a sentence for counts two and three in

2008. The transcript of the 2008 sentencing hearing reflects that the trial court only

pronounced a sentence on count one because it was under the misunderstanding that

-2- Mr. Rogers had been previously sentenced for counts two and three. After the clerk

asked an inaudible question, the trial court stated, "No, those have all been - - it's only

on the one Count. The others have already been time served. It's only on the one

Count. Both sides agree as far as technically remain - - it's only on the one Count - - is

the only Count that remains active as far as the sentencing?" The State answered,

"Good question, Your Honor." The trial court then asked again, "Which was the sexual

battery on a child Count?" The State responded, "I believe so." The trial court stated, "I

believe all the Counts have already been subsumed by the way of the time served."

Neither Mr. Rogers nor the State objected.

On March 7, 2016, Mr. Rogers filed the latest motion to correct illegal

sentence, arguing that his sixty-year sentence for count one exceeded the statutory

maximum of thirty years. In response to the motion, the State argued that the trial court

was required to impose a sentence on counts two and three, because those counts

were left without a disposition. The State noted that Florida Rule of Criminal Procedure

3.701(d)(12) mandates, "[a] sentence must be imposed for each offense."

The trial court granted Mr. Rogers' motion to correct illegal sentence,

finding that the sixty-year sentence for count one was in excess of the statutory

maximum for a first-degree felony. The trial court entered an amended judgment and

sentence on August 4, 2016, which only addressed the attempted sexual battery charge

in count one. However, on page five of the sentencing document, the trial court

incorrectly "recommends/orders" that Mr. Rogers was previously sentenced for counts

two and three on February 18, 2008. Further, at the hearing on the motion to correct

sentence, the court found that in 2008 the judge orally sentenced Mr. Rogers to time

-3- served for counts two and three. The State correctly argues that the 2008 transcript

does not support the trial court's finding.

Discussion

A review of the sentencing documents in the record shows that Mr.

Rogers has not been sentenced for counts two and three. Therefore, the trial court

erred in refusing to sentence Mr. Rogers based on the finding that he had been

previously sentenced to time served. Despite the confusion at the probation violation

hearing, the court at that time did not pronounce a sentence of time served as to counts

two and three. Only the sentence for count one was pronounced. The court merely

noted that Mr. Rogers had served his time in prison for some of the other charges. "No,

those have all been - - it's only on the one Count. The others have already been time

served." Clearly, Mr. Rogers had not yet been sentenced for counts two and three.

Further, even if Mr. Rogers had been verbally sentenced to time served at the 2008

hearing, the trial court still should have entered a written sentence following the 2016

hearing. We therefore affirm Mr. Rogers' sentence of thirty years in prison for count one

and remand this case to the trial court to impose sentence on the remaining two counts

of attempted sexual battery on a child.

Affirmed in part, reversed in part, and remanded.

SALARIO and ATKINSON, JJ., Concur.

-4-