DWAYNE L. MITCHELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court affirmed denial of ineffective assistance claim but remanded sentencing challenge regarding consecutive mandatory minimums for aggravated assault to determine whether offenses occurred at separate times and places.
The trial court's summary denial of the ineffective assistance of counsel claim was proper, but the sentencing challenge regarding consecutive mandatory minimum sentences must be remanded for an evidentiary hearing to determine whether the aggravated assault convictions involved separate incidents.
[1] Consecutive mandatory minimum sentences for aggravated assault may be illegal if the convictions do not involve separate times and places, requiring remand for evidentiar…
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Join FLexlaw to unlock all legal intelligenceMitchell was convicted and sentenced to consecutive three-year mandatory minimum terms for aggravated assault of two different individuals in case no.…
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PER CURIAM.
Defendant Mitchell appeals the summary denial of his motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850, without an evidentiary hearing. Mitchell’s motion for post-conviction relief was based upon two grounds: ineffective assistance of trial counsel and imposition of consecutive mandatory minimum sentences in one of the cases for which Mitchell was sentenced, case no. 86-15394.
We find no error as to defendant’s claim for ineffective assistance of trial counsel and affirm as to that portion of the trial court order. Defendant’s sentencing challenge concerns the imposition of two consecutive three-year mandatory minimum terms for aggravated assault of two different individuals. The trial court in its order of summary denial makes no specific reference to this issue. We are unable to determine whether the convictions resulting in the sentences for aggravated assault in case no. 86-15394 involved instances occurring at separate times and places. If they did not, the decisions in Palmer v. State, 438 So. 2d 1 (Fla.1983) and Pettis v. State, 448 So. 2d 565 (Fla. 4th DCA 1984) would support defendant’s contention that the sentences imposed were illegal. Accordingly, we remand the matter to the trial court as to ground two only for an evidentiary hearing or for attachment to the trial court’s order of that portion of the record showing the movant is not entitled to relief.
LETTS, DELL and GARRETT, JJ., concur.
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Citator
Cited By
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Benton B. Bell v. State, 635 So. 2d 1080 (Fla. 2d DCA 1994)…d on appeal is that the judgment and sentence do not show that the court adjudicated the defendant as a habitual felony offender. The state concedes error. Accordingly, we reverse and remand for correction of the scrivener’s error. Hartley v. State, 572 So. 2d 34 (Fla. 2d DCA 1991); Power v. State, 568 So. 2d 511 (Fla. 5th DCA [*1081] 1990). The presence of the defendant is not required. FRANK, C.J., and PATTERSON, J., concur.…
Authorities Cited
- Dean v. Publix Supermarkets, Inc., 438 So. 2d 1 (Fla. 1983)
- Pettis v. State, 448 So. 2d 565 (Fla. 4th DCA 1984)