DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

July Term 2014

CEDRIC DENNARD,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D13-3610

[August 20, 2014]

Appeal of order denying rule 3.800 motion from the Circuit Court for 

the Fifteenth Judicial Circuit, Palm Beach County; Karen Miller, Judge; 

L.T. Case No. 2000CF3809AXXXMB.

Cedric Dennard, Clermont, pro se. 

Pamela Jo Bondi, Attorney General, Tallahassee, and Assistant 

Attorney General, Allen R. Geesey, West Palm Beach, for appellee.

PER CURIAM.

We affirm the trial court’s denial of appellant’s successive rule 3.800(a) 

motion to correct illegal sentence. Appellant contends that the concurrent 

twenty-two year sentences that he received in 2001 for two sexual battery 

offenses are illegal. He claims that the 22-year term imposed for each 

second-degree felony exceeds the 15-year statutory maximum and also 

exceeds the 16.15-year minimum permissible sentence under the Criminal 

Punishment Code scoresheet.

Appellant raised this same claim in a rule 3.800(a) motion that he filed 

in 2009. That motion was denied on the merits, and he did not appeal. 

He repeated the claim in another post-conviction motion that he filed in 

2011. That motion was denied on the merits, and we affirmed. Dennard 

v. State, 4D11-4842, 2013 WL 1845715 (Fla. 4th DCA May 1, 2013) (table).

Appellant’s claim is barred by the collateral estoppel and law of the case 

doctrines, and there is no manifest injustice in applying these procedural 

bars. State v. McBride, 848 So. 2d 287 (Fla. 2003).
2

Remanding this case for resentencing at this point would accomplish 

nothing. The trial court could have achieved its sentencing goal that 

defendant receive twenty-two years in prison for this set of offenses by 

structuring the sentences consecutively. Blackshear v. State, 531 So. 2d 

956, 958 (Fla. 1988); Rigueiro v. State, 132 So. 3d 853, 854-55 (Fla. 4th 

DCA 2013). As the Florida Supreme Court recognized in McBride, the mere 

existence of an illegal sentence is not equivalent to a manifest injustice. 

848 So. 2d at 292 (holding that the illegal thirty-year habitual felony 

offender sentence for the life felony did not result in manifest injustice 

because defendant was serving concurrent terms of equal length on other 

counts).

Affirmed.

LEVINE and CONNER, JJ., concur. 

CONNER, J., concurs specially with opinion.

WARNER, J., dissents with opinion. 

CONNER, concurring specially.

I concur with the majority opinion that Dennard is not entitled to a new 

sentencing hearing because there is no manifest injustice.

I write to agree with Judge Warner that section 921.0024(2), Florida 

Statutes (1999), is unclear on how a sentence should be imposed in cases 

where there are multiple offenses for sentencing and the sentencing points

result in a lowest permissible sentence (LPS) above the statutory maximum 

for the primary offense. This case exemplifies out the problem because 

Dennard was convicted of the same two offenses, either one of which could 

be considered the primary offense. One could read the statute to require 

the trial court to impose 16.15 years for each offense. Because the statute 

also allows for concurrent or consecutive sentencing, one could argue that 

the trial court had only two choices for sentencing Dennard: impose a total 

of 16.15 years in prison (by imposing the sentences concurrently) or a total 

of 32.3 years in prison (by imposing the sentences consecutively). 

However, there is language in the statute which indicates to me that in the 

context of sentencing for two counts of the same offense, the legislature 

did not intend for the sentencing court to have only two narrow options.

Section 921.0024(2) provides:

The total sentence points shall be calculated only as a means 

of determining the lowest permissible sentence. The 
3

permissible range for sentencing shall be the lowest 

permissible sentence up to and including the statutory 

maximum, as defined in s. 775.082, for the primary offense 

and any additional offenses before the court for sentencing. 

The sentencing court may impose such sentences 

concurrently or consecutively. However, any sentence to state 

prison must exceed 1 year. If the lowest permissible sentence 

under the code exceeds the statutory maximum sentence as 

provided in s. 775.082, the sentence required by the code 

must be imposed.

The problem in this case lies with the last sentence. Do the words “the 

sentence required by the code must be imposed” refer to each offense for 

sentencing or to the primary offense? In the context of this case, I think 

the second sentence of the statute is pivotal. It refers to “the permissible 

range for sentencing,” and it refers to sentencing “for the primary offense 

and any additional offenses.” Thus, I read the application of the statute 

differently than Judge Warner.

I read the second and last sentences in pari materia. Although not 

explicit, I contend the legislature intended the last sentence to refer only 

to the primary offense, since under the Criminal Punishment Code scoring 

system, there can be only one primary offense. § 921.0021(4), Fla. Stat. 

(1999) (“Only one count of one offense before the court for sentencing shall 

be classified as the primary offense.”).

Thus, as I interpret the statute, the trial court was required to sentence 

Dennard to 16.15 years for the primary offense. As to the second offense, 

the trial court was free to impose any sentence from no incarceration with 

probation all the way up to fifteen years of prison, consecutively or 

concurrently.

I concede that my interpretation of the statute allows for the possibility 

that Dennard could have receive a total sentence of 31.15 years in prison 

(16.15 years on the primary offense and 15 years on the second offense). 

It also allows more options than the limited two options of 16.15 years or 

32.3 years in prison discussed above.

Judge Warner’s interpretation of the statute has merit. Obviously, the 

legislature needs to clarify its intent as to the application of the last 

sentence in section 921.0024(2).

WARNER, J., dissenting. 
4

I must respectfully dissent from the majority opinion. The sentences 

are illegal, as the majority notes. The twenty-two year term can be made 

legal only by imposing lesser terms and making them consecutive to each 

other.1

State v. McBride, 848 So. 2d 287 (Fla. 2003), on which the majority 

relies, holds that a defendant is not precluded from re-litigating the 

illegality of a sentence under law of the case or res judicata, but may be 

barred by collateral estoppel, unless a manifest injustice may occur. In 

McBride, the court determined that re-litigation of the sentencing claim 

was barred, because no manifest injustice occurred where the defendant 

was serving a concurrent legal sentence. Id. at 292. Here, however, the 

defendant is serving two illegal sentences. He is not serving a legal 

sentence.

Where the sentences are illegal and no legal sentence has been 

imposed, the court should impose a legal sentence. Courts have rejected 

the state’s position that merely because the court could have imposed a 

legal sentence, there was no error in failing to correct an illegal sentence. 

See, e.g., Cooper v. State, 960 So. 2d 849, 851 (Fla. 1st DCA 2007). 

Further, the original sentencing judge did not impose the sentences 

consecutively. It should be for the sentencing judge to determine whether 

to impose consecutive sentences in this case based upon all of the factors 

involved in sentencing. I would reverse for resentencing.

Appellant claims, however, that he can be sentenced only to 16.15 

years, no more and no less. He relies on Butler v. State, 838 So. 2d 554 

(Fla. 2003), in which the supreme court clarified that when the lowest 

permissible sentence (“LPS”) produced by a Criminal Punishment Code 

 

1 Appellant contends that the sentencing judge rejected consecutive sentencing 

because the offenses were committed in a single criminal episode. However, that 

would not preclude consecutive sentencing. See § 775.021(4)(a), Fla. Stat. (1999) 

(requiring separate sentence for each offense committed in single criminal 

episode, and providing “the sentencing judge may order the sentences to be 

served concurrently or consecutively”); § 921.16(1), Fla. Stat. (1999) (court may 

direct that two or more of the sentences for offenses charged in the same 

information be served consecutively); § 921.0024(2), Fla. Stat. (1999) (providing, 

when imposing CPC sentences, that “[t]he sentencing court may impose such 

sentences concurrently or consecutively”); Almendares v. State, 916 So. 2d 29, 

30 (Fla. 4th DCA 2005) (explaining that the exception, precluding the imposition 

of consecutive sentences under various enhancement statutes for offenses 

occurring in a single criminal episode, does not apply if the defendant was not 

sentenced pursuant to a sentencing enhancing statute).
5

(“CPC”) scoresheet exceeds the statutory maximum, then the LPS becomes 

the maximum sentence. Id. at 556. In Butler, the primary offense at 

sentencing was possession of cocaine, a third degree felony carrying a 

sentence of five years. Id. at 555. The remaining charges for sentencing 

included possession of cannabis, driving with a suspended license, 

resisting arrest without violence, and driving under the influence. Id. 

These all appear to be misdemeanors, and the sentences for those charges 

do not appear in the opinion. Butler challenged his sentence for 

possession of cocaine of 75.6 months, his LPS, as exceeding the statutory 

maximum. Id. The supreme court held that section 921.0024(2), Florida 

Statutes (2002), required sentencing above the statutory maximum, where 

the LPS exceeded the maximum. Id. at 556.

The court did not discuss consecutive or concurrent sentencing, nor 

did it discuss what constituted the statutory maximum for the offenses at 

sentencing. It addressed only the sentence for the third degree felony, the 

primary offense. Therefore, we must take in that context the court’s 

pronouncement that “when section 921.0024(2) applies so that the 

statutory maximum sentence as provided in section 775.082, Florida 

Statutes (2002), is exceeded by the lowest permissible sentence under the 

code, the lowest permissible sentence under the code becomes the 

maximum sentence which the trial judge can impose.” Id. at 556.

Appellant’s contention that the LPS is the maximum sentence for the 

crimes, regardless of the number of additional offenses and possibility of 

consecutive sentencing, would lead to an absurd result. That 

interpretation of Butler would mean that a person with a substantial 

record and whose LPS exceeded the statutory maximum could actually be 

sentenced to less time, i.e., the LPS, than a person with an LPS of less 

than the statutory maximum, where there would be no prohibition against 

sentencing the defendant to the statutory maximum for each count and 

then running the sentences consecutively.

Courts, however, are expanding the Butler holding to matters not 

covered within its holding. In Demar v. State, 840 So. 2d 381 (Fla. 1st DCA 

2003), for instance, the defendant was convicted of two offenses: child 

abuse, a third degree felony, and aggravated child neglect, a second degree 

felony, so the scoresheet maximum was twenty years. Id. at 382. The LPS 

was 64.5 months, which exceeded by 4.5 months the five-year statutory 

maximum for child abuse. On direct appeal, the First District vacated her 

sentence for child abuse, which was 7.5 years in prison, followed by five 

years of probation, explaining that the maximum sentence that could be 

imposed for child abuse was 64.5 months, which is a little more than five 

years. Id. (citing Butler). I assume that the second degree felony was the 
6

primary offense. Thus, under Butler, the defendant had to be sentenced to 

at least the LPS for that offense, but I don’t read Butler as allowing each 

additional offense to be sentenced to up to the LPS where the LPS exceeds 

the statutory maximum for the additional offense. 

The Fifth District followed Demar in Hannah v. State, 869 So. 2d 692 

(Fla. 5th DCA 2004), rev. dismissed, 921 So. 2d 628 (Fla. 2006). There, 

the defendant’s conviction included three counts of sexual activity with a 

child in a familial relationship, each a first degree felony, with a thirty-year 

statutory maximum. 869 So. 2d at 693. The defendant’s LPS under the 

CPC was 539.4 prison months, almost forty-five years. Id. For those three 

counts, Hannah was sentenced concurrently to twenty-five years in prison, 

followed by twenty-five years of sex offender probation. Id. On direct 

appeal, he argued those three sentences were illegal, and the Fifth District 

agreed, remanding for resentencing on those counts, because the LPS 

became the maximum permissible sentence, relying on Butler. Id. It 

reasoned:

 In Butler v. State, 838 So. 2d 554 (Fla. 2003), the Florida 

Supreme Court held that when the statutory maximum 

sentence is exceeded by the lowest permissible sentence under 

the Criminal Punishment Code, the lowest permissible 

sentence under the Code becomes the maximum sentence 

that the trial judge can impose. See also Demar v. State, 840 

So. 2d 381 (Fla. 1st DCA 2003). Thus, the maximum sentence 

in this case for these crimes is 539.4 months. As the split 

sentence of 50 years for Counts 2, 6 and 7 exceeds the 

maximum permissible sentence, we remand this case to the 

trial court to resentence Mr. Hannah on those counts.

Id. Thus, it appears that, in Hannah, the court would allow sentencing 

above the statutory maximum to the LPS for all offenses at sentencing 

where the LPS exceeds the statutory maximum. As the court states that 

the maximum sentence for the crimes (plural) was the LPS, I infer that the 

Hannah court concluded the trial court could not sentence consecutively 

above the LPS. Hannah may support the appellant’s interpretation of

Butler.

Neither the statute nor Butler is clear on how a sentence should be 

imposed in cases where there are multiple offenses for sentencing and the 

sentencing points, which reflect all the offenses at sentencing, result in an 

LPS above the statutory maximum for the primary offense but less than 

the statutory maximum of all offenses available for sentencing, run 

consecutively. I think, however, that the statute provides a way to 
7

harmonize all of its terms.

Section 921.0024(2), Florida Statutes (1999), requires that a 

sentencing scoresheet be prepared to arrive at a “lowest permissible 

sentence,” below which the trial court may not sentence absent the limited 

reasons for a downward departure. The statute provides:

The total sentence points shall be calculated only as a means 

of determining the lowest permissible sentence. The 

permissible range for sentencing shall be the lowest 

permissible sentence up to and including the statutory 

maximum, as defined in s. 775.082, for the primary offense 

and any additional offenses before the court for sentencing. 

The sentencing court may impose such sentences 

concurrently or consecutively. However, any sentence to state 

prison must exceed 1 year. If the lowest permissible sentence 

under the code exceeds the statutory maximum sentence as 

provided in s. 775.082, the sentence required by the code 

must be imposed.

Our supreme court interpreted this portion of the sentencing statute as 

setting a minimum sentence for all offenses at sentencing together but 

setting no collective maximum. Instead, each offense has its own 

maximum, namely the statutory maximum for the individual offense:

 Under the CPC, “[t]he trial court judge may impose a 

sentence up to and including the statutory maximum for any 

offense, including an offense that is before the court due to a 

violation of probation or community control.” § 921.002(1)(g), 

Fla. Stat. (1999) (emphasis added). The Legislature expressed 

that the primary purpose of sentencing is to be punishment. 

See § 921.002(1)(b), Fla. Stat. (1999). As with the sentencing 

guidelines, a single scoresheet for all offenses is used for CPC

sentencing. However, a single sentencing range is not 

established under the CPC as occurred under the prior 

guidelines. “The permissible range for sentencing shall be the 

lowest permissible sentence up to and including the statutory 

maximum . . . for the primary offense and any additional 

offenses before the court for sentencing. The sentencing court 

may impose such sentences concurrently or consecutively.” § 

921.0024(2), Fla. Stat. (1999).

 Under the prior guidelines, the individual offenses were 

considered interrelated because together they were used to 
8

establish the minimum and maximum sentence that could be 

imposed. To the contrary, however, under the CPC, together 

the individual offenses only establish the minimum 

sentence that may be imposed; a single maximum sentence 

is not established─each individual offense has its own 

maximum sentence, namely the statutory maximum for 

that offense. Under the CPC, multiple offenses are not 

interrelated as they were previously under the guidelines.

. . . .

[B]ecause the concerns related to guidelines sentencing are no 

longer present in CPC sentencing, and the courts are no 

longer specifically limited to a sentencing range under the 

CPC, there is no justification for continuing to treat separate 

offenses as an interrelated unit after the minimum sentence 

is established.

Moore v. State, 882 So. 2d 977, 985 (Fla. 2004) (bold emphasis added). I 

find the bolded language from Moore to be the most important. As I 

understand Moore, the LPS is the collective total minimum sentence for all 

offenses, but each has its own statutory maximum. The LPS is not the 

sentence which must be applied to each offense at sentencing.

In light of Moore, I read the statute’s admonition--“If the lowest 

permissible sentence under the code exceeds the statutory maximum 

sentence as provided in s. 775.082, the sentence required by the code 

must be imposed”--as applying to the collective total statutory maximum of 

the individual sentences. Thus, in this case, the statutory maximum 

sentence for each offense at sentencing was fifteen years. If the court 

chose to sentence consecutively, the statutory maximum for all sentences 

was thirty years. As the LPS for all offenses was 16.15 years, the sentence 

for either offense should not have exceeded the statutory maximum, 

because the court could effectuate the LPS by running the sentences 

consecutively. For example, to achieve a twenty-two year sentence, the 

court could sentence each offense at eleven years, or one at fifteen and one 

at seven. That is why the statute also provides that the sentences may be 

imposed concurrently or consecutively. I read this as the legislative 

direction to use consecutive sentencing to achieve an LPS without 

exceeding the statutory maximum for any one offense. If the sentence for 

each offense at sentencing must meet the LPS and those sentences can be 

run consecutively, then appellant could be sentenced to 32.3 years, or 2.3 

years in excess of the collective statutory maximum. I do not think the 

statute authorizes this result.
9

I would conclude that, in cases of multiple offenses for sentencing, only 

where consecutive sentences may be barred by double jeopardy or other 

statutory reasons should the court exceed the statutory maximum for any 

one offense, where the LPS may be achieved through consecutive 

sentencing. I recognize, however, that my interpretation is at odds with 

Butler to the extent that Butler seems to require that at least the primary 

offense must receive a sentence not less than the LPS where it exceeds the 

statutory maximum for that offense. Butler does not require, however, that 

all of the additional offenses must also receive sentences above their 

statutory maximum.

Nevertheless, the supreme court has not directly addressed how to 

sentence multiple offenses in relation to an LPS which exceeds the 

statutory maximum for multiple sentences included in one scoresheet. 

Butler does not provide guidance in this situation. Because this may occur 

frequently, I would hope that in a proper case the supreme court would 

provide guidance to the trial courts for sentencing in these situations.

* * *

Not final until disposition of timely filed motion for rehearing.