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476 So. 2d 297

476 So.2d 297

10 Fla.L.Weekly 2315

Surace v. State

District Court of Appeal of Florida

Decided October 8, 1985

District Court of Appeal of Florida · decided 1985-10-08

Cited by 1 later decisions — most recently May 1986

Relies on 401 So. 2d 1343 - State v. Rivers · 476 So. 2d 165 - State v. Carney · 397 So. 2d 663 - State v. Williams

Good law ✅— No negative treatment on recordhow we know

Decided 1985-10-08

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PER CURIAM.

¶1Defendant Rocco Surace appeals the trial court’s summary dismissal of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Surace received consecutive terms of imprisonment: 99 years for second degree murder, 99 years for sexual battery, and 5 years for false imprisonment. In his motion, Surace alleged that the trial court erred in retaining jurisdiction over the first third of his sentence and in imposing sentences for both second degree felony murder and the underlying felony of sexual battery.

¶2*298The state concedes that because Surace was sentenced prior to the effective date of section 947.16, Florida Statutes (Supp. 1978), which authorizes the trial court to retain jurisdiction over the first third of a sentence, the court’s retention of jurisdiction constituted an unconstitutional ex post facto application of the statute. State v. Williams, 397 So.2d 663 (Fla.1981). We therefore remand for the entry of an appropriate order.

¶3We turn next to Surace’s assertion that he was erroneously sentenced for both felony murder and the underlying felony. In a recent opinion, State v. Enmund, 476 So.2d 165 (Fla.1985), the supreme court overruled State v. Hegstrom, 401 So.2d 1343 (Fla.1981), and authorized convictions and sentences for both felony murder and the underlying felony. We therefore hold that the trial court’s imposition of separate sentences for sexual battery and for second degree murder was correct.

¶4Affirmed in part; remanded for entry of a corrected order in accordance with this opinion.

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