A unique situation arises when a prisoner serving a life sentence becomes part of another action while incarcerated that results in him being charged with first degree murder and a death sentence is handed down in this second crime. Is this death sentence to run consecutive, concurrent, or coterminous with the original sentence?This might seem like a situation that is too rare to consider, but it has happened more often that people think in Florida. In most of these instances the court remained silent at sentencing as to weather the death sentence was to run consecutive or concurrent. According to Florida law, when the court is silent on this issue at sentencing, the sentence is to run consecutive. This "silent at sentencing situation" makes logical sense in the cases of non-capital crimes, but when a death sentence is handed down and the court is silent, how should this sentenced be categorized?
In a hypothetical situation, a prisoner is serving a life sentence for second degree murder, and in the course of serving this sentence is charged with first degree murder for an act that happened in prison that resulted in the death of another inmate. A trial takes place, and this prisoner is convicted of first degree murder and a corresponding sentence of death is handed down. When sentencing takes place the judge remains silent with regards to the sentence being served consecutive or concurrent. Now, with a death sentence it would seem logical that it would run along side or be coterminous with the original sentence of life for second degree murder. If it was to run consecutive, wouldn't the state have to wait for the original life sentence to expire before implementing the death sentence?
Something to consider:
-Criminal Law Of Florida-
Principle of Supreme Court decisions prohibiting deferred effective date for parole revocation and requiring the first sentence imposed to be the first served shall be applied retroactively; however, such a determination does not effect sentence computations where there is no prejudicial effect on release date, nor does it affect legislative grant of authority to the Judiciary to impose concurrent or consecutive sentences......West’s F.S.A 921.16.
Statute, providing that sentences for separate offenses not charged in the same indictment are to be consecutive to previously imposed sentences when the sentencing court is silent, prevails over conflicting rule of criminal procedure providing that the sentences are concurrent unless affirmatively designated consecutive by the sentencing court, because the subject of sentencing is substantive law. 34 West’s F.S.A Rules of Criminal Procedure, Rule 3.722; West’s F.S.A. 921.16.
-Constitutional Law-
Substantive law prescribes duties, rights, and responsibility to make substantive law is in the legislature within the limits of State and Federal Constitutions.
-Procedural Law-
Concerns the means and method to apply and enforce those duties and rights. Procedural Rules concerning the Judicial branch are the responsibility of the Florida Supreme Court, subject to repeal by the legislature in accordance with our constitutional provisions. See in re Clarification of Florida Rules of Practice and Procedure 281 So.2d 204 (Fla. 1973). In re Florida Rules of Criminal Procedure, 272 So.2d 65, amended 272 So.2d 513(Fla. 1973).
-Therefore-
The prescribed punishment for a criminal offense is clearly substantive law. State v. Garcia 229 So.2d 236(Fla. 1969).
An argument can be made that the manner of the imposition of the sentence is procedural; However, whether a sentence is consecutive or concurrent directly affects the length of tome spent in prison, and therefore, rights are involved, not procedure. A judge should affirmatively state whether a sentence is consecutive or concurrent; when he fails to do so, it necessarily follows that the legislature has the primary authority to determine if the sentence should be consecutive or served concurrently with another sentence.
Therefore, we come to the conclusion that the refusal to honor the sentence raised overriding questions of the separation of powers. Once service of a sentence has begun, the state could not alter it unilaterally to a prisoner’s detriment.
When a death sentence is imposed upon a criminal already serving a sentence for an unrelated crime, is the death sentence imposed automatically concurrent, consecutive, or conterminous? Or does procedure revert back to F.S.A. 921.16 and the death sentence imposed will run consecutive to any sentence the prisoner is serving first, if the court remains silent concerning whether the death sentence is concurrent or consecutive to a sentence the criminal is previously serving?
An additional problem arises when on appeal, the sentence of death is overturned and replaced with a sentence of life with a 25 year mandatory minimum. If this death sentence was coterminous, then this sentence had started and the inmate was in fact housed on death row. To add another twist to this situation, suppose the judge adds a statement at re-sentencing giving the inmate credit for time served while on death row. Without question the judge could not give credit for time served for a sentence that had not begun to be served. Hence,was the death sentence coterminous or consecutive with the original life sentence for second degree murder?
To illustrate this example question, an amended sentencing document can be viewed under the right column link 80-240 CF Amended Sentence. This is an instance where a judge changed an originally handed down death sentence to a sentence of natural life with a 25 year mandatory minimum. In this document the judge states on page two that it is ordered the composite term of all sentences imposed for the counts specified in this order shall run consecutive to any active sentence being served. Yet, a problem arises when looking at page one where the judge specifically adds "credit for time served on this case since original date of sentence on March 30, 1981." In giving credit for time served, it is acknowledged that this sentence had begun. A sentence once started can not be stopped and reverted back to another previous sentence then started again to the detriment of the inmate.
After reading the forgoing facts and law: Would it not be more appropriate and legally binding, if it was left up to the sentencing court to re-sentence the convicted criminal only to clarify the sentence as to it being run either concurrently, consecutively, or coterminous? This could be done by the prisoner filing a Post Conviction Motion 3.800(A) Correction of Sentence. Thus making the prisoner’s sentence and structure clearer of all branches of government that are entrusted with the responsibility of carrying out his/her sentence.
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