Levy v. State

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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED. IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT ANTONIO S. LEVY, Appellant, v. STATE OF FLORIDA, Appellee. ) ) ) ) ) ) ) ) ) ) Case No. 2D09-1066 Opinion filed June 18, 2010. Appeal from the Circuit Court for Hillsborough County; Thomas P. Barber, Judge. James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant. Bill McCollum, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee. WHATLEY, Judge. Antonio Levy challenges his sentence of eighteen months for the firstdegree misdemeanor of possession of less than twenty grams of cannabis.1 See § 1 Levy raised the issue of the trial court's failure to impose separate sentences for the two offenses of which he was convicted in a motion filed pursuant to 893.13(6)(b), Florida Statutes (2008). The State concurs that because a first-degree misdemeanor is punishable by up to only one year in jail, § 775.082(4)(a), Levy must be resentenced. After a jury found Levy guilty of the third-degree felony of delivery of cannabis, § 893.13(1)(a)(2), and the first-degree misdemeanor of possession of cannabis, the trial court orally pronounced that it would sentence Levy to eighteen months in prison. The written sentence is consistent with the court's pronouncement in imposing a general sentence for the two offenses, which the supreme court has held is improper. See Dorfman v. State, 351 So. 2d 954, 957 (Fla. 1977). Trial courts must impose separate sentences for separate offenses. Accordingly, we reverse Levy's sentence of eighteen months for the firstdegree misdemeanor of possession of less than twenty grams of cannabis and remand with directions that the trial court sentence Levy to not more than one year for this offense. Reversed and remanded for resentencing. KELLY and KHOUZAM, JJ., Concur. Florida Rule of Criminal Procedure 3.800(b)(2). The trial court failed to hear or enter an order on the motion, and it is deemed denied. See Fla. R. Crim. P. 3.800(b)(1)(B). -2-

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