Full Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT CHEYENNE MARRON, ) ) Appellant, ) ) v. ) Case No. 2D19-1335 ) STATE OF FLORIDA, ) ) Appellee. ) ) Opinion filed March 26, 2021. Appeal from the Circuit Court for Lee County; Nicholas R. Thompson, Judge. Howard L. Dimmig, II, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and David Campbell, Assistant Attorney General, Tampa, for Appellee. LUCAS, Judge. Cheyenne Marron and four others were involved in an armed robbery that left one victim dead and another injured. Pursuant to a plea agreement she reached with the State, Ms. Marron was adjudicated guilty and sentenced on the following counts: count I, second-degree murder with a firearm, 150 months of incarceration followed by 150 months of probation; count II, attempted second-degree murder with a firearm, 126 months of incarceration followed by two years of probation; count III, armed robbery, 150 months of incarceration followed by 150 months of probation; and count IV, conspiracy to commit robbery, 60 months of incarceration. All of the counts were set to run concurrently. While Ms. Marron's direct appeal was pending before this court, her attorney filed a Florida Rule of Criminal Procedure 3.800(b)(2) motion with the circuit court.1 In her postconviction motion, Ms. Marron argued that her sentence on count II was illegal because she would still be incarcerated and serving her prison sentence under counts I and III when the probationary period began on count II. The circuit court never ruled on the motion, and so it was deemed denied by operation of rule 3.800(b)(2)(B). See Sirmons v. State, 264 So. 3d 958, 959 (Fla. 4th DCA 2019) ("[I]f a trial court does not rule on a motion to correct a sentencing error filed while an appeal is pending within sixty days, the motion shall be deemed denied." (citing Fla. R. Crim. P. 3.800(b)(2)(B))). Ms. Marron now brings this separate appeal in which she argues that the circuit court erred when it denied her rule 3.800 postconviction motion. Her argument is well taken. It is well settled that a court cannot sentence a defendant to serve probation while that defendant would still be serving a separate sentence in prison. See Nobles v. State, 605 So. 2d 996, 997 (Fla. 2d DCA 1992) (observing it would be 1See Proctor v. State, 901 So. 2d 994, 995 (Fla. 1st DCA 2005) ("Florida Rule of Criminal Procedure 3.800(b)(2) provides that 'If an appeal is pending, a defendant or the state may file in the trial court a motion to correct a sentencing error.' "). -2 - "reversible error to impose simultaneous terms of imprisonment and probation" (citing Barr v. State, 474 So. 2d 417 (Fla. 2d DCA 1985); Brudie v. State, 467 So. 2d 1113 (Fla. 2d DCA 1985))); Robinson v. State, 198 So. 3d 1088, 1095 (Fla. 4th DCA 2016) ("[T]he incarcerative portions of all counts must be completed before the probationary portion of any count begins." (quoting Hatton v. State, 689 So. 2d 1195, 1195 (Fla. 4th DCA 1997))). The sentences the circuit court imposed run afoul of this limitation.2 Accordingly, we reverse and remand for the circuit court to correct the sentences in accordance with this opinion. Reversed; remanded with instructions. KHOUZAM, C.J., and LABRIT, J., Concur. 2The State suggests that, notwithstanding the written sentence the circuit court entered, the presiding judge intended Ms. Marron’s probation to commence only upon completion of all of her prison sentences. That may be true, but it is not apparent from our review of the record that that intent was ever expressed. And we are not at liberty to go beyond what the presiding judge actually said on the record to glean what sentence the judge intended to impose. Cf. Nobles, 605 So. 2d at 996 ("Probably the trial court planned that the probationary terms [in one case number] . . . would run concurrently with the [other] probationary terms . . . and consecutive to the prison term . . . . However, neither the written sentences nor the oral pronouncement of the sentences make that clear."). -3 -