Fort Walton Beach Council agenda — 08-08-2006 ‎(executive)‎ — reading text

Circuit Court Case No. 93- 8354. Charles J. Crist. Jr.. Attorney General, and David J. Glantz, Assistant Attorney General, for appellee. Whipple' s position in his civil suit was that he should not have had to serve any time on the Dade sentence since it was structured to run concurrent and Before GERSTEN, GREEN, and RAMIREZ, JJ. coterminous with his already expired Duval sentence. Thus, Whipple claimed that when he completed his St. Johns sentence on December 31, 1997 he was ON MOTION FOR CLARIFICATION entitled to be released from custody by DOC. GREEN, J. Whipple, however, was not released at that time. We treat appellant' s motion to correct opinion as a 557 DOC's position was that the Dade sentence could not, a matter of law, run concurrent and as motion for clarification, grant the same, withdraw our coterminous with the expired Duval sentence. DOC, opinion of December 22, 2004, and substitute the therefore, treated the concurrent and coterminous following opinion in its stead. language of the Dade sentence as a legal nullity. As a result, reasoned that because the Dade DOC Maurice Whipple appeals an adverse final summary sentence did not address the St. Johns sentence, judgment entered in his civil action against the State of Florida' s Department of Corrections (" DOC") for Whipple' s Dade sentence would have to be served consecutive to the S1. Johns sentence pursuant to false imprisonment. For the reasons which follow, section 921. 16( I ). Florida Statutes ( 1995 ). LFN41 we affirm. FN4. That section provides in relevant part: Whipple, a former penal inmate, sued DOC in the Sentences of imprisonment for offenses not civil action below. The gist of his suit was that he was imprisoned by DOC longer than his court- charged in the same indictment, information, or affidavit shall be served consecutively imposed sentences in three unrelated cases. The unless the court directs that two or more of undisputed record evidence reveals that on the sentences be served concurrently. September 30, 1994, Whipple was sentenced to 61 921. 160). Fla. Stat. (1995). days in the Duval County Jail (" Duval sentence"). rFN 11 With credit given for time served, Whipple Q 2006 Thomson/West. No Claim to Orig. U. S. Govt. Works. 892 So.2d 554 Page 3 892 So. 2d 554, 30 Fla. L.Weekly D333 Cite as: 892 So. 2d 554) Whipple was not released from custody until May 1, 2000, after the Dade trial court corrected the Dade To begin with, we agree with DOC that the sentence to run concurrent and be coterminous with concurrent and coterminous language of Whipple' s the St. Johns sentence, nunc pro tunc July 20, 1995. Dade sentence was mere surplusage and a nullity as a FN51 matter of law. That is because a sentence that has been fully served leaves nothing for another sentence FN 5. On this appeal, Whipple acknowledges to be attached as concurrent or coterminous. See that his Dade sentence should have initially Rohaus v. State. 667 So. 2d 858. 858 ( Fla. 4th DCA been made to run concurrent and 1996) (" It is axiomatic that one cannot be sentenced coterminous with his St. Johns sentence. to a term of punishment that runs concurrent with the sentence imposed for a dismissed count because no After his release, Whipple filed the civil action such sentence exists."); * 558State v. Franklin. 175 below for false imprisonment and negligence against N.J. 456. 815 A.2d 964. 966 ( 2003) (" That part of DOC. Whipple' s theories of liability were that DOC defendant' s] sentence made to run concurrent to the held him against his will after the expiration of his St. prior] offense was rendered a nullity because he had Johns sentence on December 31, 1997, and that DOC already served the full time on the [ prior] offense."); made no attempt to ascertain the intent of the Miami- see also Murrav v. Goord. 298 A.D.2d 94. 747 Dade sentencing judge where there was confusion N. Y. S. 2d 492. 497 ( 2002) ("[ V] acating the judgment about the concurrent and coterminous language of the of conviction renders moot the consecutive or Dade sentence. concurrent aspect of the associated sentence by operation of law because there is no longer another Both parties moved for summary judgment on the sentence to which the remaining valid sentence can false imprisonment claim. ( FN61 The trial court be either concurrent or consecutive."). Accordingly, granted summary judgment in favor of DOC and DOC was entitled to treat the concurrent and denied Whipple' s motion. Whipple moved for coterminous language of the Dade sentence as void, rehearing and the trial court denied the same. On ineffective and/or mere surplusage, in much the same appeal, Whipple asserts three arguments as to why manner that the judiciary does. See Ex oarte Sams. the summary judgment was improvidently entered in 67 So. 2d 657. 659 ( Fla. 1953) ( finding that a sentence DOC's favor. prescribing that it run concurrent with an earlier sentence should be regarded as surplusage where the FN6. Whipple' s negligence claim was not earlier sentence was void because the purported adjudicated by the trial court in the summary crime to which the earlier sentence was imposed was judgment and remains pending before the legally unauthorized and nonexistent). court below. In properly treating the concurrent and coterminous ill First, Whipple contends that DOC falsely language of Whipple' s Dade sentence as a nullity, imprisoned him, as a matter of law, when it refused DOC therefore had before it an otherwise valid to run his Dade sentence concurrent and coterminous sentence which did not mention Whipple' s existing with his expired Duval sentence as ordered by the St. Johns sentence. Under such circumstances, DOC Dade court. In failing to do so, Whipple asserts that was required to run the Dade sentence consecutive to DOC, as member of the executive branch of a the St. Johns sentence pursuant to the legislative government, [ FN7) violated the separation of powers mandates of section 921. 16(1 ). See, e.g., Fox v. State. doctrine. Essentially, Whipple claims that his false 827 So. 2d 377. 378 ( Fla. 3d DCA 2002) ( holding that imprisonment began on December 31, 1997 when he DOC correctly structured a defendant' s 1976 and completed his St. Johns sentence and DOC required 1992 sentences to run consecutively where they were him to commence serving his Dade County sentence not charged in the same instrument and the court did rather than releasing him from custody. In failing to not order them to be served concurrently). In so run his Dade sentence concurrently and coterminous doing, DOC acted with color of authority and with his Duval sentence as ordered by the Dade Whipple' s false imprisonment claim must fail as a court, Whipple argues that DOC violated the matter of law. See Everett v. Fla. Inst. of Tech.. 503 separation of powers doctrine. We disagree. So. 2d 1382. 1383 ( Fla. 5th DCA 1987) ( In order to