       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                            HECTOR COLON,
                               Appellant,

                                     v.

                          STATE OF FLORIDA,
                               Appellee.

                             No. 4D15-2394

                              [June 1, 2016]

   Appeal of order denying rule 3.850 motion from the Circuit Court for
the Fifteenth Judicial Circuit, Palm Beach County; Barry M. Cohen, Judge;
L.T.      Case     Nos.       502011CF004851A,        502011CF011697A,
502011CF001374A, and 502011CF007485A.

   Hector Colon, Live Oak, pro se.

  Pamela Jo Bondi, Attorney General, Tallahassee, and Luke R.
Napodano, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

   Appellant challenges the trial court’s denial of his motion for
postconviction relief in which he claimed that his plea was involuntary
because the Department of Corrections (“DOC”) determined a release date
without considering the nearly two years appellant spent in county jail for
one of his crimes, thereby increasing his incarceration by that amount.
Because this was a direct consequence of his plea, we conclude that the
motion was legally sufficient and reverse for an evidentiary hearing.

   Colon was charged with several crimes in four separate cases, the most
serious of which was first degree murder. He elected to resolve his cases
with a plea, and the State agreed to reduce the murder charge to second
degree murder. His criminal punishment scoresheet reflected a lowest
permissible sentence of 304.58 months, or 25.4 years. Pursuant to the
negotiated plea, the trial court would sentence appellant on all counts to
this amount of prison time. For each of the four cases, the offenses,
statutory maximums, agreed sentences, and jail credits are as follows:
Case 10-7485      Possession of a Schedule II Controlled Substance;
                  § 893.13(6)(A); Third Degree Felony; 5 year max.
                  Sentence: 304.58 months
                  Jail Credit: 4 days

Case 11-1374      Felony    Driving     with   a   Suspended     License;
                  § 322.34(2)(c); Third Degree Felony; 5 year max.
                  Sentence: 304.58 months
                  Jail Credit: 1 day

Case 11-4851      Second Degree Murder with a Firearm; §§ 782.04(2),
                  775.087; Life Felony
                  Attempted Second Degree Murder with a Firearm;
                  §§ 782.04(2), 777.04(1), 775.087; First Degree Felony
                  Sentence: 304.58 months
                  Jail Credit: 674 days

Case 11-11697     Battery on a Correctional Support Employee;
                  § 784.07(2)(b); Third Degree Felony; 5 year max.
                  Sentence: 304.58 months
                  Jail Credit: 472 days

    When appellant arrived at the DOC, officials informed him that his
“controlling case number” in calculating jail credit was the felony driving
with a suspended license conviction, for which he had received only one
day of jail credit, as opposed to the second degree murder conviction, for
which he had received 674 days of credit. In his motion for postconviction
relief, appellant swore that had he known that he would not actually
receive credit for the 674 days, he would not have entered the plea. The
trial court summarily denied the motion based upon the State’s response,
which noted that appellant was simply mistaken as to how the DOC
structures jail credit and this was not grounds to determine his plea was
involuntary. This appeal follows.

    The voluntariness of a plea depends on the defendant’s understanding
of the direct consequences of that plea. See Major v. State, 814 So. 2d 424,
428 (Fla. 2002). A direct consequence is one that has a “definite,
immediate, and largely automatic effect on the range of the defendant’s
punishment.” Id. (quoting State v. Fox, 659 So. 2d 1324, 1327 (Fla. 3d
DCA 1995)); see also State v. Partlow, 840 So. 2d 1040, 1043 (Fla. 2003).

   The application of jail credit to the sentences in this case is a direct
consequence of appellant’s sentence. See, e.g., Thompson v. State, 60 So.
3d 563, 564 (Fla. 2d DCA 2011); Reyna v. State, 18 So. 3d 1131, 1133

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(Fla. 2d DCA 2009). “[W]hen a defendant receives concurrent sentences
for different cases, the defendant is entitled to credit against each sentence
only for the time spent in jail for the charge resulting in that sentence.”
Salazar v. State, 995 So. 2d 1058, 1059 (Fla. 4th DCA 2008). Here, the
DOC considered the sentence with the least jail credit (one day) as the
primary sentence for determining a release date. Thus, appellant was not
given jail credit for the nearly two years he had already served.
Consequently, he will have to serve the 304.58 months (minus one day) in
addition to the 674 days that he has already spent in the county jail on
what are his most serious offenses—murder and attempted murder.

   We conclude that appellant’s motion challenging the plea as
involuntary is facially sufficient. 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. We thus reverse for further
proceedings, as the record attachments do not conclusively refute
appellant’s allegations.

GERBER and FORST, JJ., concur.
WARNER, J., concurs specially.

WARNER, J., concurring specially.

    Although I concur in the reversal for further proceedings, I believe the
sentences imposed, other than the sentence for second degree murder and
attempted second degree murder, were illegal, an issue not raised in this
appeal. In Dennard v. State, 157 So. 3d 1055 (Fla. 4th DCA 2014) (Warner,
J., dissenting), appeal dismissed, No. SC15-300 (Fla. Mar. 30, 2016), I
argued in dissent that neither section 921.0024(2), Florida Statutes
(2002), nor the supreme court’s interpretation of it in Butler v. State, 838
So. 2d 554 (Fla. 2003), were clear on how to sentence where, as is the case
here, there are multiple counts for sentencing and the lowest permissible
sentence (“LPS”) exceeds the statutory maximum. I disagree that all
counts must receive the LPS when it is above the statutory maximum
sentence. I wrote in Dennard:

      Section 921.0024(2), Florida Statutes (1999), requires that a
      sentencing scoresheet be prepared to arrive at a “lowest
      permissible sentence,” below which the trial court may not
      sentence absent the limited reasons for a downward
      departure. The statute provides:



                                      3
   The total sentence points shall be calculated only as a
   means of determining the lowest permissible sentence.
   The permissible range for sentencing shall be the
   lowest permissible sentence up to and including the
   statutory maximum, as defined in s. 775.082, for the
   primary offense and any additional offenses before the
   court for sentencing. The sentencing court may
   impose such sentences concurrently or consecutively.
   However, any sentence to state prison must exceed 1
   year. If the lowest permissible sentence under the
   code exceeds the statutory maximum sentence as
   provided in s. 775.082, the sentence required by the
   code must be imposed.

Our supreme court interpreted this portion of the sentencing
statute as setting a minimum sentence for all offenses at
sentencing together but setting no collective maximum.
Instead, each offense has its own maximum, namely the
statutory maximum for the individual offense:

   Under the CPC, “[t]he trial court judge may impose a
   sentence up to and including the statutory maximum
   for any offense, including an offense that is before the
   court due to a violation of probation or community
   control.” § 921.002(1)(g), Fla. Stat. (1999) (emphasis
   added). The Legislature expressed that the primary
   purpose of sentencing is to be punishment. See
   § 921.002(1)(b), Fla. Stat. (1999).        As with the
   sentencing guidelines, a single scoresheet for all
   offenses is used for CPC sentencing. However, a single
   sentencing range is not established under the CPC as
   occurred under the prior guidelines. “The permissible
   range for sentencing shall be the lowest permissible
   sentence up to and including the statutory maximum
   . . . for the primary offense and any additional offenses
   before the court for sentencing. The sentencing court
   may impose such sentences concurrently or
   consecutively.” § 921.0024(2), Fla. Stat. (1999).

   Under the prior guidelines, the individual offenses
   were considered interrelated because together they
   were used to establish the minimum and maximum
   sentence that could be imposed. To the contrary,
   however, under the CPC, together the individual

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          offenses only establish the minimum sentence
          that may be imposed; a single maximum sentence is
          not established—each individual offense has its
          own maximum sentence, namely the statutory
          maximum for that offense. Under the CPC, multiple
          offenses are not interrelated as they were previously
          under the guidelines.
                                   ....

          [B]ecause the concerns related to guidelines
          sentencing are no longer present in CPC sentencing,
          and the courts are no longer specifically limited to a
          sentencing range under the CPC, there is no
          justification for continuing to treat separate offenses
          as an interrelated unit after the minimum sentence is
          established.

      Moore v. State, 882 So. 2d 977, 985 (Fla. 2004) (bold emphasis
      added). I find the bolded language from Moore to be the most
      important. As I understand Moore, the LPS is the collective
      total minimum sentence for all offenses, but each has its own
      statutory maximum. The LPS is not the sentence which must
      be applied to each offense at sentencing.

      In light of Moore, I read the statute’s admonition—“If the
      lowest permissible sentence under the code exceeds the
      statutory maximum sentence as provided in s. 775.082, the
      sentence required by the code must be imposed”—as applying
      to the collective total statutory maximum of the individual
      sentences.

Dennard, 157 So. 3d at 1060-61.

   Thus, in this case, as the statutory maximum for second degree murder
was life, well in excess of the LPS, sentencing appellant to the LPS for the
primary offense satisfies the statutory directive of section 921.0024(2).
The sentences for the remaining third degree felonies should not exceed
the statutory maximum for each crime.

    The application of jail credit in this case presents an additional reason
why applying the same sentence to all crimes where the LPS exceeds the
statutory maximum is untenable. Appellant pled to three third degree
felonies and one life felony. The statutory maximum for a third degree
felony is five years, yet on each third degree felony, appellant was

                                     5
sentenced in excess of twenty-five years. Because appellant had only one
day of jail credit on his driving with a suspended license charge, his 304.58
month sentence on that charge became, for DOC purposes, the longest
sentence and thus established the earliest release date. Because all of the
charges carried the same sentence, but the jail credit was not applicable
to all the sentences, appellant will actually serve nearly two years more
than the LPS, even though his plea was based on the LPS.

   As I noted in my dissent in Dennard, the court should have structured
the sentences so that appellant served at least the LPS collectively, but
without exceeding the statutory maximum for the individual charges.
Dennard, 157 So. 3d at 1061. As appellant was sentenced to the LPS for
the second degree murder charge, he should have been sentenced only to
the statutory maximum for the remaining third degree felonies. I would
argue that the sentences for all of the third degree felonies are illegal as
exceeding the statutory maximum for those crimes. 1 Reducing those
sentences to their statutory maximum would allow the DOC to calculate
the release date on the second degree murder charge, applying the 674
days of jail credit to that sentence. That is clearly what appellant thought
would occur and what should have occurred in this case.

   Consequently, while I agree that this case should be remanded on the
postconviction relief motion, the fault in this case really lies in what I
believe is an erroneous application of section 921.0024(2), Florida
Statutes, to a multiple-conviction case, leading to an illegal sentence.

                             *         *          *

    Not final until disposition of timely filed motion for rehearing.




1I acknowledge that Cunningham v. State, 22 So. 3d 127, 129 (Fla. 4th DCA
2009), is to the contrary, but I disagree with its interpretation of the statute.


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