        DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT
                               July Term 2014

                            CEDRIC DENNARD,
                               Appellant,

                                      v.

                           STATE OF FLORIDA,
                                Appellee.

                              No. 4D13-3610

                             [August 20, 2014]

   Appeal of order denying rule 3.800 motion from the Circuit Court for
the Fifteenth Judicial Circuit, Palm Beach County; Karen Miller, Judge;
L.T. Case No. 2000CF3809AXXXMB.

   Cedric Dennard, Clermont, pro se.

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

PER CURIAM.

    We affirm the trial court’s denial of appellant’s successive rule 3.800(a)
motion to correct illegal sentence. Appellant contends that the concurrent
twenty-two year sentences that he received in 2001 for two sexual battery
offenses are illegal. He claims that the 22-year term imposed for each
second-degree felony exceeds the 15-year statutory maximum and also
exceeds the 16.15-year minimum permissible sentence under the Criminal
Punishment Code scoresheet.

    Appellant raised this same claim in a rule 3.800(a) motion that he filed
in 2009. That motion was denied on the merits, and he did not appeal.
He repeated the claim in another post-conviction motion that he filed in
2011. That motion was denied on the merits, and we affirmed. Dennard
v. State, 4D11-4842, 2013 WL 1845715 (Fla. 4th DCA May 1, 2013) (table).

   Appellant’s claim is barred by the collateral estoppel and law of the case
doctrines, and there is no manifest injustice in applying these procedural
bars. State v. McBride, 848 So. 2d 287 (Fla. 2003).
    Remanding this case for resentencing at this point would accomplish
nothing. The trial court could have achieved its sentencing goal that
defendant receive twenty-two years in prison for this set of offenses by
structuring the sentences consecutively. Blackshear v. State, 531 So. 2d
956, 958 (Fla. 1988); Rigueiro v. State, 132 So. 3d 853, 854-55 (Fla. 4th
DCA 2013). As the Florida Supreme Court recognized in McBride, the mere
existence of an illegal sentence is not equivalent to a manifest injustice.
848 So. 2d at 292 (holding that the illegal thirty-year habitual felony
offender sentence for the life felony did not result in manifest injustice
because defendant was serving concurrent terms of equal length on other
counts).

   Affirmed.

LEVINE and CONNER, JJ., concur.
CONNER, J., concurs specially with opinion.
WARNER, J., dissents with opinion.

CONNER, concurring specially.

   I concur with the majority opinion that Dennard is not entitled to a new
sentencing hearing because there is no manifest injustice.

    I write to agree with Judge Warner that section 921.0024(2), Florida
Statutes (1999), is unclear on how a sentence should be imposed in cases
where there are multiple offenses for sentencing and the sentencing points
result in a lowest permissible sentence (LPS) above the statutory maximum
for the primary offense. This case exemplifies out the problem because
Dennard was convicted of the same two offenses, either one of which could
be considered the primary offense. One could read the statute to require
the trial court to impose 16.15 years for each offense. Because the statute
also allows for concurrent or consecutive sentencing, one could argue that
the trial court had only two choices for sentencing Dennard: impose a total
of 16.15 years in prison (by imposing the sentences concurrently) or a total
of 32.3 years in prison (by imposing the sentences consecutively).
However, there is language in the statute which indicates to me that in the
context of sentencing for two counts of the same offense, the legislature
did not intend for the sentencing court to have only two narrow options.

   Section 921.0024(2) provides:

      The total sentence points shall be calculated only as a means
      of determining the lowest permissible sentence.           The


                                     2
      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.

The problem in this case lies with the last sentence. Do the words “the
sentence required by the code must be imposed” refer to each offense for
sentencing or to the primary offense? In the context of this case, I think
the second sentence of the statute is pivotal. It refers to “the permissible
range for sentencing,” and it refers to sentencing “for the primary offense
and any additional offenses.” Thus, I read the application of the statute
differently than Judge Warner.

    I read the second and last sentences in pari materia. Although not
explicit, I contend the legislature intended the last sentence to refer only
to the primary offense, since under the Criminal Punishment Code scoring
system, there can be only one primary offense. § 921.0021(4), Fla. Stat.
(1999) (“Only one count of one offense before the court for sentencing shall
be classified as the primary offense.”).

   Thus, as I interpret the statute, the trial court was required to sentence
Dennard to 16.15 years for the primary offense. As to the second offense,
the trial court was free to impose any sentence from no incarceration with
probation all the way up to fifteen years of prison, consecutively or
concurrently.

    I concede that my interpretation of the statute allows for the possibility
that Dennard could have receive a total sentence of 31.15 years in prison
(16.15 years on the primary offense and 15 years on the second offense).
It also allows more options than the limited two options of 16.15 years or
32.3 years in prison discussed above.

   Judge Warner’s interpretation of the statute has merit. Obviously, the
legislature needs to clarify its intent as to the application of the last
sentence in section 921.0024(2).

WARNER, J., dissenting.



                                      3
   I must respectfully dissent from the majority opinion. The sentences
are illegal, as the majority notes. The twenty-two year term can be made
legal only by imposing lesser terms and making them consecutive to each
other.1

    State v. McBride, 848 So. 2d 287 (Fla. 2003), on which the majority
relies, holds that a defendant is not precluded from re-litigating the
illegality of a sentence under law of the case or res judicata, but may be
barred by collateral estoppel, unless a manifest injustice may occur. In
McBride, the court determined that re-litigation of the sentencing claim
was barred, because no manifest injustice occurred where the defendant
was serving a concurrent legal sentence. Id. at 292. Here, however, the
defendant is serving two illegal sentences. He is not serving a legal
sentence.

    Where the sentences are illegal and no legal sentence has been
imposed, the court should impose a legal sentence. Courts have rejected
the state’s position that merely because the court could have imposed a
legal sentence, there was no error in failing to correct an illegal sentence.
See, e.g., Cooper v. State, 960 So. 2d 849, 851 (Fla. 1st DCA 2007).
Further, the original sentencing judge did not impose the sentences
consecutively. It should be for the sentencing judge to determine whether
to impose consecutive sentences in this case based upon all of the factors
involved in sentencing. I would reverse for resentencing.

   Appellant claims, however, that he can be sentenced only to 16.15
years, no more and no less. He relies on Butler v. State, 838 So. 2d 554
(Fla. 2003), in which the supreme court clarified that when the lowest
permissible sentence (“LPS”) produced by a Criminal Punishment Code

1  Appellant contends that the sentencing judge rejected consecutive sentencing
because the offenses were committed in a single criminal episode. However, that
would not preclude consecutive sentencing. See § 775.021(4)(a), Fla. Stat. (1999)
(requiring separate sentence for each offense committed in single criminal
episode, and providing “the sentencing judge may order the sentences to be
served concurrently or consecutively”); § 921.16(1), Fla. Stat. (1999) (court may
direct that two or more of the sentences for offenses charged in the same
information be served consecutively); § 921.0024(2), Fla. Stat. (1999) (providing,
when imposing CPC sentences, that “[t]he sentencing court may impose such
sentences concurrently or consecutively”); Almendares v. State, 916 So. 2d 29,
30 (Fla. 4th DCA 2005) (explaining that the exception, precluding the imposition
of consecutive sentences under various enhancement statutes for offenses
occurring in a single criminal episode, does not apply if the defendant was not
sentenced pursuant to a sentencing enhancing statute).


                                        4
(“CPC”) scoresheet exceeds the statutory maximum, then the LPS becomes
the maximum sentence. Id. at 556. In Butler, the primary offense at
sentencing was possession of cocaine, a third degree felony carrying a
sentence of five years. Id. at 555. The remaining charges for sentencing
included possession of cannabis, driving with a suspended license,
resisting arrest without violence, and driving under the influence. Id.
These all appear to be misdemeanors, and the sentences for those charges
do not appear in the opinion. Butler challenged his sentence for
possession of cocaine of 75.6 months, his LPS, as exceeding the statutory
maximum. Id. The supreme court held that section 921.0024(2), Florida
Statutes (2002), required sentencing above the statutory maximum, where
the LPS exceeded the maximum. Id. at 556.

   The court did not discuss consecutive or concurrent sentencing, nor
did it discuss what constituted the statutory maximum for the offenses at
sentencing. It addressed only the sentence for the third degree felony, the
primary offense. Therefore, we must take in that context the court’s
pronouncement that “when section 921.0024(2) applies so that the
statutory maximum sentence as provided in section 775.082, Florida
Statutes (2002), is exceeded by the lowest permissible sentence under the
code, the lowest permissible sentence under the code becomes the
maximum sentence which the trial judge can impose.” Id. at 556.

   Appellant’s contention that the LPS is the maximum sentence for the
crimes, regardless of the number of additional offenses and possibility of
consecutive sentencing, would lead to an absurd result.              That
interpretation of Butler would mean that a person with a substantial
record and whose LPS exceeded the statutory maximum could actually be
sentenced to less time, i.e., the LPS, than a person with an LPS of less
than the statutory maximum, where there would be no prohibition against
sentencing the defendant to the statutory maximum for each count and
then running the sentences consecutively.

    Courts, however, are expanding the Butler holding to matters not
covered within its holding. In Demar v. State, 840 So. 2d 381 (Fla. 1st DCA
2003), for instance, the defendant was convicted of two offenses: child
abuse, a third degree felony, and aggravated child neglect, a second degree
felony, so the scoresheet maximum was twenty years. Id. at 382. The LPS
was 64.5 months, which exceeded by 4.5 months the five-year statutory
maximum for child abuse. On direct appeal, the First District vacated her
sentence for child abuse, which was 7.5 years in prison, followed by five
years of probation, explaining that the maximum sentence that could be
imposed for child abuse was 64.5 months, which is a little more than five
years. Id. (citing Butler). I assume that the second degree felony was the

                                    5
primary offense. Thus, under Butler, the defendant had to be sentenced to
at least the LPS for that offense, but I don’t read Butler as allowing each
additional offense to be sentenced to up to the LPS where the LPS exceeds
the statutory maximum for the additional offense.

    The Fifth District followed Demar in Hannah v. State, 869 So. 2d 692
(Fla. 5th DCA 2004), rev. dismissed, 921 So. 2d 628 (Fla. 2006). There,
the defendant’s conviction included three counts of sexual activity with a
child in a familial relationship, each a first degree felony, with a thirty-year
statutory maximum. 869 So. 2d at 693. The defendant’s LPS under the
CPC was 539.4 prison months, almost forty-five years. Id. For those three
counts, Hannah was sentenced concurrently to twenty-five years in prison,
followed by twenty-five years of sex offender probation. Id. On direct
appeal, he argued those three sentences were illegal, and the Fifth District
agreed, remanding for resentencing on those counts, because the LPS
became the maximum permissible sentence, relying on Butler. Id. It
reasoned:

        In Butler v. State, 838 So. 2d 554 (Fla. 2003), the Florida
      Supreme Court held that when the statutory maximum
      sentence is exceeded by the lowest permissible sentence under
      the Criminal Punishment Code, the lowest permissible
      sentence under the Code becomes the maximum sentence
      that the trial judge can impose. See also Demar v. State, 840
      So. 2d 381 (Fla. 1st DCA 2003). Thus, the maximum sentence
      in this case for these crimes is 539.4 months. As the split
      sentence of 50 years for Counts 2, 6 and 7 exceeds the
      maximum permissible sentence, we remand this case to the
      trial court to resentence Mr. Hannah on those counts.

Id. Thus, it appears that, in Hannah, the court would allow sentencing
above the statutory maximum to the LPS for all offenses at sentencing
where the LPS exceeds the statutory maximum. As the court states that
the maximum sentence for the crimes (plural) was the LPS, I infer that the
Hannah court concluded the trial court could not sentence consecutively
above the LPS. Hannah may support the appellant’s interpretation of
Butler.

   Neither the statute nor Butler is clear on how a sentence should be
imposed in cases where there are multiple offenses for sentencing and the
sentencing points, which reflect all the offenses at sentencing, result in an
LPS above the statutory maximum for the primary offense but less than
the statutory maximum of all offenses available for sentencing, run
consecutively. I think, however, that the statute provides a way to

                                       6
harmonize all of its terms.

   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:

      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

                                     7
      establish the minimum and maximum sentence that could be
      imposed. To the contrary, however, under the CPC, together
      the individual 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. Thus, in this case, the statutory maximum
sentence for each offense at sentencing was fifteen years. If the court
chose to sentence consecutively, the statutory maximum for all sentences
was thirty years. As the LPS for all offenses was 16.15 years, the sentence
for either offense should not have exceeded the statutory maximum,
because the court could effectuate the LPS by running the sentences
consecutively. For example, to achieve a twenty-two year sentence, the
court could sentence each offense at eleven years, or one at fifteen and one
at seven. That is why the statute also provides that the sentences may be
imposed concurrently or consecutively. I read this as the legislative
direction to use consecutive sentencing to achieve an LPS without
exceeding the statutory maximum for any one offense. If the sentence for
each offense at sentencing must meet the LPS and those sentences can be
run consecutively, then appellant could be sentenced to 32.3 years, or 2.3
years in excess of the collective statutory maximum. I do not think the
statute authorizes this result.

                                       8
    I would conclude that, in cases of multiple offenses for sentencing, only
where consecutive sentences may be barred by double jeopardy or other
statutory reasons should the court exceed the statutory maximum for any
one offense, where the LPS may be achieved through consecutive
sentencing. I recognize, however, that my interpretation is at odds with
Butler to the extent that Butler seems to require that at least the primary
offense must receive a sentence not less than the LPS where it exceeds the
statutory maximum for that offense. Butler does not require, however, that
all of the additional offenses must also receive sentences above their
statutory maximum.

   Nevertheless, the supreme court has not directly addressed how to
sentence multiple offenses in relation to an LPS which exceeds the
statutory maximum for multiple sentences included in one scoresheet.
Butler does not provide guidance in this situation. Because this may occur
frequently, I would hope that in a proper case the supreme court would
provide guidance to the trial courts for sentencing in these situations.

                            *        *         *

   Not final until disposition of timely filed motion for rehearing.




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