          FIRST DISTRICT COURT OF APPEAL
                 STATE OF FLORIDA
                  _____________________________

                          No. 1D17-5170
                  _____________________________

CORTEZ KWAME JOHNSON,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
                  _____________________________

On appeal from the Circuit Court for Escambia County.
John L. Miller, Judge.

                        September 12, 2019

M.K. THOMAS, J.

     Cortez Johnson appeals an order denying his motion for post-
conviction relief under Florida Rule of Civil Procedure 3.850. He
claims his sentence is illegal, and trial counsel was ineffective for
failing to fully advise him regarding sentencing. We affirm.

     After charging Johnson with multiple offenses, the State
extended a plea offer of fifteen years. Johnson and his counsel
discussed the minimum possible sentence of ten years and the
statutory maximum. Johnson’s counsel advised, based on previous
sentencing patterns, that the trial court may be lenient and
sentence him below the State’s offer. Counsel claimed he discussed
the drawbacks of a straight up plea, that it may result in a longer
sentence, and that the sentencing decision was ultimately up to
the trial court. Yet, Johnson declined the State’s plea offer.
     Thereafter, Johnson pled no contest in a straight up plea to
the State charges. His trial counsel requested that the state
sentences run concurrently with a ten-year federal prison sentence
Johnson was currently serving. The trial court granted counsel’s
request, and Johnson was sentenced to twenty years in state
prison to be served concurrent to his federal sentence. But after
sentencing on the state charges, Johnson was moved out of federal
prison and into the state prison system to begin serving his state
sentence. As a result, Johnson is slated to serve a total of thirty
years as he receives no credit against his federal sentence while in
state custody.

     Johnson filed an Amended Motion for Post-Conviction Relief
under Florida Rule of Criminal Procedure 3.850. He asserts his
sentence was illegal because he was forced to serve his state prison
sentence first and then afterward, begin serving his federal
sentence, thus, nullifying the condition that the state and federal
sentences be served concurrently. He also claims trial counsel was
ineffective for failing to properly advise him regarding his
sentence. The trial court denied Johnson’s motion.

     On appeal, Johnson argues the trial court erred in denying his
3.850 motion because, although the trial court lacked the authority
to order the Department of Corrections to allow him to serve his
state sentence in a federal prison, the trial court had the authority
to vacate the imposed concurrent state sentence, and then either
impose a suspended sentence of ten years, enter a sentence of time
served allowing him to proceed to federal prison, or allow him to
withdraw his plea. We disagree.

    Regarding concurrent sentences, Florida Statutes dictate:

    A county court or circuit court of this state may direct
    that the sentence imposed by such court be served
    concurrently with a sentence imposed by a court of
    another state or of the United States, or for purposes of
    this section, concurrently with a sentence to be imposed
    in another jurisdiction. In such case, the Department of
    Corrections may designate the correctional institution of
    the other jurisdiction as the place for reception and
    confinement of such person and may also designate the

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    place in Florida for reception and confinement of such
    person in the event that confinement in the other
    jurisdiction terminates before the expiration of the
    Florida sentence.

§ 921.16(2), Fla. Stat. Further, “[a]lthough trial courts have the
statutory authority to impose a sentence that is to be served
concurrently with a sentence imposed by another state or federal
court, the Department of Corrections has discretionary authority
regarding the placement of an inmate sentenced to serve multiple
sentences.” Davis v. State, 852 So. 2d 355, 357 (Fla. 5th DCA 2003).
Hence, a sentence is not necessarily illegal on the basis that the
sentencing judge lacks the authority to impose it. Courts have
held, “an order providing that a state sentence is to be served
concurrently with a federal sentence is really only a
recommendation.” Id.; accord Napolitano v. State, 875 So. 2d 1290
(Fla. 3d DCA 2004); Doyle v. State, 615 So. 2d 278 (Fla. 3d DCA
1993), rev. denied, 629 So. 2d 132 (Fla. 1993), cert. denied, 511 U.S.
1007 (1994).

     Thus, Johnson’s concurrent sentence was merely a
recommendation by the sentencing judge and the discretion to
determine how and where the sentence would be served belonged
to the Department of Corrections. Johnson relies on Rodgers v.
State, 76 So. 3d 349 (Fla. 3d DCA 2011) to demonstrate that
appellate courts have granted relief in the form of a 3.850 motion
to allow sentences to be served as originally intended. However,
the appellant in Rodgers entered a guilty plea and was given a
state sentence to be served concurrent to a federal sentence. Id. at
349. The court in Rodgers is silent as to whether Rodgers’ guilty
plea was entered as part of a plea bargain or conditioned upon a
certain sentence being imposed. However, it can be inferred, given
the court’s reliance on Glenn v. State, 776 So. 2d 330, 331 (Fla. 4th
DCA 2001) (“Where a condition of a guilty plea is that the
defendant will serve the agreed-upon state sentence in federal
prison concurrently with a longer federal sentence, the defendant
is entitled to post conviction relief if the terms of agreement are
not met.”), that there was a condition attached to Rodgers’ guilty
plea which was not present in the instant case. Id. at 350. Further,
the court in Rodgers stated, “the State conceded that the
allegations in Rodgers’ motion for postconviction relief are facially

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sufficient, and therefore, the trial court erred by summarily
denying the motion.” Id. at 349. Here, the State does not make
such a concession.

     Similarly, in Hutchinson v. State, 845 So. 2d 1019 (Fla. 3d
DCA 2003) and Taylor v. State, 710 So. 2d 636 (Fla. 3d DCA 1998),
the appellants were granted relief pursuant to a 3.850 motion
because they were offered plea bargains and their acceptance of
those plea bargains was conditioned upon the sentences being
concurrent. Here, unlike the appellants in Rodgers, Hutchinson,
and Taylor, Johnson pled no contest in a straight up plea after
rejecting the State’s plea offer. A 3.850 motion does not provide
relief because his sentence is within the statutory minimum and
maximum and is, therefore, legal. Further, because Johnson’s
sentence was not part of a plea bargain and his no contest plea was
not based on the condition of concurrent sentencing, the plea was
not involuntary. The order on appeal is affirmed.

    AFFIRMED.

LEWIS, J., concurs; MAKAR, J., dissents with written opinion.
                 _____________________________

    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
               _____________________________

MAKAR, J., dissents.

      A concurrent federal/state sentence that results in longer than
agreed-upon incarceration can be contrary to a plea bargain and
thereby be remediable under Florida law. Absent a plea deal, such
a sentence can also be contrary to a trial judge’s sentencing order
and thereby subject to correction to effectuate the trial judge’s
directive. In the former, a defendant has a reliance interest in the
specific enforcement of the plea bargain; in the latter, a defendant,
as well as the sentencing judge, has a strong interest in the
enforcement of the sentence actually imposed. Here, the trial
judge’s sentence should be enforced, not because Johnson agreed
to it, but because the trial judge ordered it.

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     Under Florida law, a “county court or circuit court of this state
may direct that the sentence imposed by such court be served
concurrently with a sentence imposed by a court of another state
or of the United States,” which is a clear statement of legal
authority for the type of concurrent state/federal sentence imposed
in this case. § 921.16(2), Fla. Stat. (2019). The trial judge sentenced
Johnson to a total of twenty years for his state crimes with the
condition that his sentence be served concurrent with the ten-year
federal sentence he was currently serving. The clear intent of the
trial judge’s sentencing order was that Johnson not serve more
than twenty years overall.

     But Johnson was moved from the federal prison into a Florida
prison, resulting in a problem. Because he gets no credit towards
his federal sentence for time served in the Florida prison, he will
be incarcerated a total of thirty years—twenty years in a Florida
prison and ten in a federal prison—which far exceeds the twenty
years the trial judge intended and ordered.

     Had Johnson’s sentence be pursuant to a plea bargain, he
would be entitled to relief on the theory of “specific performance”
of the plea deal. See, e.g., Hutchinson v. State, 845 So. 2d 1019,
1020 (Fla. 3d DCA 2003) (defendant challenging effect of prison
transfer on concurrent state/federal sentence “is entitled to specific
performance of the Florida plea agreement.”); see also Sadler v.
State, 980 So. 2d 567, 569 (Fla. 5th DCA 2008) (existence of a
“federal sentence does not prevent the court from enforcing the
State’s agreement” and the intent of trial judge that defendant’s
“state sentence run concurrent with his federal sentence so that he
did not receive ‘double time.’”); Glenn v. State, 776 So. 2d 330, 331
(Fla. 4th DCA 2001) (“Where a condition of a guilty plea is that the
defendant will serve the agreed-upon state sentence in federal
prison concurrently with a longer federal sentence, the defendant
is entitled to postconviction relief if the terms of the agreement are
not met.”); Taylor v. State, 710 So. 2d 636, 637 (Fla. 3d DCA 1998)
(“violation of the plea bargain obviously entitles the defendant to
3.850 relief from the sentence”).

     The appropriate remedy, which was originally set forth in
Taylor v. State and has been generally followed since, is for the
trial court to “vacate the sentence already imposed and provide

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instead either that the sentence be suspended . . . or, at the
appellant’s option, to enter a sentence of ‘time served’ or simply
permit him to withdraw his plea.” 710 So. 2d at 637 (citations and
footnote omitted). The remedy’s goal is to configure the defendant’s
sentence in a way that effectuates the original intent of the
sentencing judge’s order by ameliorating the problem that arises
when an inter-jurisdictional transfer occurs that increases a
sentence beyond what was ordered. By suspending a sentence or
entering one that accounts for time served, the original intent of
the sentencing order can be achieved. For example, if Johnson’s
twenty-year Florida sentence is suspended at the ten-year mark in
a Florida prison, and he serves ten additional years in a federal
prison, his total sentence would be the twenty years the trial court
ordered.

     The type of remedy that Taylor implemented is necessary
because no authority exists to compel federal prison authorities to
cooperate to ensure that state-ordered concurrent sentences are
implemented. 1 Likewise, although a “trial court cannot order the
Department of Corrections to allow the defendant to serve his state
time in federal custody,” it can implement a Taylor-type remedy to
preserve the sentencing order’s mandate. Id. To do otherwise
would be ceding ultimate sentencing authority, a purely-judicial
branch power, to the Department. Moore v. Pearson, 789 So. 2d
316, 319 (Fla. 2001) (Department “violates the separation of power
doctrine when it refuses to carry out the sentence imposed by the
court.”); see also art. I, § 18, Fla. Const. (“No administrative agency

    1  In some unique cases, Florida courts have no effective tool
other than persuasion. See, e.g., Colon-Morales v. State, 743 So. 2d
101, 102-03 (Fla. 1st DCA 1999) (appellate court unable to provide
relief under Taylor because defendant had already “served his 5-
year state sentences entirely in state custody” despite plea
agreement that he serve state time concurrently in a federal prison
under a ten-year federal sentence; appellate court, however,
requested that “federal authorities . . . recognize the original intent
of the plea bargain” and consider nunc pro tunc relief); see also
Sadler, 980 So. at 569 (even after applying Taylor remedy, “we
realize that [Sadler] will probably serve more time than was
originally contemplated, but we have exhausted our authority in
affording a remedy.”).
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. . . shall impose a sentence of imprisonment, nor shall it impose
any other penalty except as provided by law.”).

     Some confusion has spawned because of the Department’s
placement discretion under section 921.16(2), Florida Statutes,
which says first that circuit courts may impose concurrent
federal/state sentences and secondly that the Department “may
designate the correctional institution of the other jurisdiction as
the place for reception and confinement of such person and may
also designate the place in Florida for reception and confinement
of such person in the event that confinement in the other
jurisdiction terminates before the expiration of the Florida
sentence.” § 921.16(2), Fla. Stat. In Doyle v. State, 615 So. 2d 278
(Fla. 3d DCA 1993), the Third District concluded that the
“language of [subsection (2)]” that “invests in the Department of
Corrections discretion regarding the placement of inmates” means
that “a trial court does not have the authority to order that a
Florida sentence be served concurrently with another jurisdiction’s
sentence.” Id. at 278. Under such an interpretation, a “trial court’s
order is a recommendation” only and unenforceable. Id. (emphasis
added). This interpretation, of course, directly conflicts with
subsection (2)’s clear language authorizing a trial court to impose
concurrent sentences with other jurisdictions, making Doyle a
dubious precedent on this point. 2 Indeed, the postconviction court
in this case mistakenly believed that a trial court “lack[s] actual
authority to order a Florida sentence to be served concurrently



    2 The Third District in Napolitano v. State, 875 So. 2d 1290,
1291 (Fla. 3d DCA 2004), cited the “recommendation” language
from Doyle, but did not rely upon it because Napolitano—unlike
other concurrent federal-state sentencing cases—“was not under
federal charges and not subject to a federal sentence at the time of
his state plea and sentencing.” The sentencing order merely
recommended that Napolitano serve his state time in federal
prison, if federal imprisonment were to occur. Id. (noting that
“Napolitano did not even have a federal sentence to serve, and was
in federal custody merely as a witness to a federal offense.”). For
these reasons, Napolitano has no application in this case.


                                 7
with a federal sentence,” which is the opposite of what subsection
(2) says.

     The better view, and one that clarifies Doyle, was expressed
in Davis v. State, 852 So. 2d 355, 357 (Fla. 5th DCA 2003), which
noted that the problem with a concurrent state/federal sentence
under section 921.16(2) is not that Florida courts are without a
remedy to enforce their sentencing orders. Rather, the problem is
that such sentencing orders are “not binding on the federal
correctional authorities or courts. Hence, an order providing that a
state sentence is to be served concurrently with a federal sentence
is really only a recommendation.” Id. (emphasis added) (citing
Doyle). As Davis explains, because the Florida court’s sentencing
order is not binding at the federal level, the requirement of
concurrent sentences is only a recommendation to federal officials.
See generally Erin E. Goffette, Sovereignty in Sentencing:
Concurrent and Consecutive Sentencing of A Defendant Subject to
Simultaneous State and Federal Jurisdiction, 37 VAL. U. L. REV.
1035, 1088 (2003) (explaining how “even if a state orders that its
sentence will run concurrently with an existing federal sentence,
the [Federal Bureau of Prisons] can thwart the court’s intent” by
“allow[ing] the prisoner to remain in state custody for the duration
of the state sentence” or denying “a nunc pro tunc request for the
federal sentence to be credited for the time served in state prison,”
thereby forcing consecutive sentences).

     That said, such an order is not a mere recommendation to
Florida officials, who have an obligation to provide a remedy. For
this reason, the court in Davis concluded that the “appropriate
remedy” was set forth in Taylor; it specifically disavowed forcing
the defendant “be stuck with what are essentially consecutive
sentences,” which “was not the correct solution” in these
circumstances. Id. Instead, Davis was “to file an appropriate
motion for postconviction relief seeking an appropriate remedy
pursuant to Taylor.” Id. Davis thereby supports relief for Johnson.

    In any event, the Department’s discretionary authority as to
placement of inmates under subsection (2) cannot trump a trial
judge’s sentencing order; otherwise the Department—rather than
the trial judge—would control the length of a sentence. As an
example, a state sentencing order mandating concurrent 10-year

                                 8
state and federal sentences envisions a total of ten years
imprisonment; if the Department, by its administrative placement
decisions, can effectively transform the 10-year sentence
mandated by the trial judge into a 20-year sentence, that violates
separation of powers principles by ceding to the Department
sentencing power reserved solely to the judiciary. See Pearson v.
Moore, 767 So. 2d 1235, 1237 (Fla. 1st DCA 2000) (Department
violated separations of powers by “allegedly transform[ing] what
was effectively a five-year term of incarceration into a term of
incarceration more than twice as long.”), approved and remanded,
789 So. 2d 316 (Fla. 2001). As this Court noted in Pearson,
sentencing “is an exclusively judicial function” and a “power,
obligation, and prerogative of the courts, not [the Department].”
767 So. 2d at 1237-38.

     The remaining question is whether the remedy in Taylor
applies where a defendant pleads guilty and a concurrent
federal/state sentence is imposed but no plea agreement was
reached. In Rodgers v. State, 76 So. 3d 349, 349 (Fla. 3d DCA 2011),
the Third District reviewed a post-conviction motion involving a
defendant who “pled guilty to several offenses” and “during the
sentencing hearing, the trial court sentenced him to three years in
prison, agreeing that the state sentence would run concurrent to a
longer federal sentence, and that he would serve the three-year
state sentence in federal prison.” No plea deal was mentioned.
Because sentencing records showed that “the trial court agreed
that [defendant] would serve his state sentence in federal prison
concurrent with his longer federal sentence” the matter was
remanded with instructions to apply the remedy in Taylor. Id. at
350. Rodgers thereby supports Johnson’s request for relief,
notwithstanding its citation to a plea bargain case.

     No case has denied relief under Taylor in a no-plea bargain
case and Rodgers, on its face, supports relief.

     Plus, as a matter of logic, the specific enforcement of a trial
court’s sentencing order in a plea bargain case ought not be any
different from the specific enforcement of the same order in a non-
plea bargain case; a strong case for enforcement exists in both
situations. In the latter, the order is solely the trial judge’s
independent exercise of sentencing authority, rather than a

                                 9
ratification of the parties’ agreement. Enforcing a trial judge’s
order that effectuates a plea agreement protects a defendant’s
reliance interest, but isn’t it just as important that the specific
intent of trial judges in their exercise of independent sentencing
authority be upheld? Here, the trial judge clearly wanted a stern
sentence, imposing twenty years (which exceeded the fifteen years
the state had offered, of which the judge was aware). But he
likewise made clear that the twenty years was to be concurrent
with the federal sentence, a fact the post-conviction court
highlighted, noting that the trial judge “intended the Defendant to
serve a total sentence of 20 years.” Nothing in the record
establishes that the trial judge would have imposed a thirty-year
state sentence, the one Johnson now faces, making it all the more
important that relief be afforded.

     The post-conviction court, understandably concerned that
that trial court’s intent was being thwarted, suggested non-judicial
discretionary remedies (“The Court requests and is hopeful that
the federal authorities will recognize the sentencing judge’s intent
that the Defendant’s state sentence be served concurrently with
the federal sentence previously imposed.”). The better remedy is a
judicial one, as specified in Taylor, which should apply in this case
to directly enforce the trial judge’s stated intention. Anthony v.
State, 877 So. 2d 28, 30-31(Fla. 3d DCA 2004) (applying remedy in
Taylor “since the judge stated that it was his intention that the
Defendant serve no more time on his state sentence than his
federal sentence.”).

                  _____________________________


Andy Thomas, Public Defender, and A. Victoria Wiggins, Assistant
Public Defender, Tallahassee, for Appellant.

Ashley Moody, Attorney General, and Bryan Jordan, Assistant
Attorney General, Tallahassee, for Appellee.




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