       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                         MARCUS L. COLSTON,
                             Appellant,

                                    v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D17-1039

                            [August 15, 2018]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Charles E. Burton, Judge; L.T. Case No. 50-2001-CF-
001044-AXXX-MB.

   Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public
Defender, West Palm Beach, for appellant.

   Pamela Jo Bondi, Attorney General, Tallahassee, and Richard
Valuntas, Assistant Attorney General, West Palm Beach, for appellee.

KLINGENSMITH, J.

   Marcus Colston urges this court to find that his sentence upon
conviction in the Fifteenth Judicial Circuit is unconstitutional under the
dictates of Graham v. Florida, 560 U.S. 48 (2010), and its progeny, as well
as sections 775.082(3)(c) and 921.1402(2)(d), Florida Statutes (2016). For
the reasons set forth below, we find it is premature to consider this issue
and affirm Colston’s sentence.

   In September of 2003, the trial court in the Fifteenth Judicial Circuit,
in and for Palm Beach County, sentenced Colston to sixty-five years in
prison for multiple crimes he committed as a juvenile. Approximately four
months later, another trial court, this one in the Seventeenth Judicial
Circuit, in and for Broward County, sentenced Colston to an aggregate
term of life in prison, to run consecutive to his Palm Beach sentence, for
additional crimes he committed as a juvenile. In 2013, the Broward court
resentenced him, pursuant to Graham, to seventy-five years in prison, to
again run consecutive to his Palm Beach sentence.
   In May of 2016, Colston filed a motion in Palm Beach County to correct
his sixty-five-year sentence. Two months later, he filed a similar motion
in his Broward case seeking to correct his seventy-five-year sentence.
Rather than issue an immediate ruling, the Broward court stayed
Colston’s motion pending the Florida Supreme Court’s review of the First
District’s decision in Kelsey v. State, 183 So. 3d 439 (Fla. 1st DCA 2015),
reversed 206 So. 3d 5 (2016).

   In February of 2017, after Kelsey was decided, the Palm Beach court
held a de novo sentencing hearing on Colston’s May 2016 motion. The
judge resentenced him to fifty years in prison with periodic judicial review
after twenty years. 1 However, the order was silent as to whether the
sentence would run consecutive or concurrent to the seventy-five-year
sentence issued in Broward.

   Thereafter, Colston filed a timely motion under Florida Rule of Criminal
Procedure 3.800(b)(1) and requested that the Palm Beach court clarify
whether the newly-imposed fifty-year sentence was to run consecutive to
the Broward sentence. Colston noted that because the February 2017
Palm Beach sentencing order was silent on the issue, the law mandated
that it must run consecutive to the Broward sentence, which resulted in
an aggregate of 125-years’ imprisonment. See § 921.16(1), Fla. Stat.
(2016) (“Sentences of imprisonment for offenses not charged in the same
indictment, information, or affidavit shall be served consecutively unless
the court directs that . . . the sentences be served concurrently.”) He
argued below, and asserts on appeal, that such a sentence is contrary to
the principles of Graham, its progeny, and sections 775.082(3)(c) and
921.1402(2)(d).

    Given that Colston’s motion to correct his seventy-five-year Broward
sentence remains pending before that court, the issue presented on appeal
is not yet ripe for our consideration. Because the Broward court stayed
its consideration of Colston’s motion until Kelsey was decided by the
Florida Supreme Court, we anticipate that the trial court will now act on
Colston’s request. That court’s decision will determine the relief to which
Colston may be entitled, if any. Consequently, we affirm Colston’s Palm
Beach sentence, but do so without prejudice to seek post-conviction relief
following the imposition of a new Broward sentence.

    Affirmed.


1The trial court stated that the resentencing was nunc pro tunc to September 4,
2003, the original sentencing date.

                                      2
GROSS and CONNER, JJ., concur.

                         *       *        *

  Not final until disposition of timely filed motion for rehearing.




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