Opinion
No. 95-04460.
January 24, 1996.
Appeal pursuant to Fla.R.App.P. 9.140(g) from the Circuit Court for Hillsborough County; Chet A. Tharpe, Judge.
John Lester Benjamin appeals the summary denial of his postconviction motion. It is asserted that the imposition of a six-year sentence of incarceration as a habitual offender and a consecutive sentence of four years' probation as a habitual offender is improper under the dictates of Hale v. State, 630 So.2d 521 (Fla. 1993), cert. denied, ___ U.S. ___, 115 S.Ct. 278, 130 L.Ed.2d 195 (1994). Benjamin's argument is well-taken as the prohibition against consecutive habitual offender sentences applies to a sentence of imprisonment on one count, followed by a term of probation on another count arising from a single criminal episode. See Jackson v. State, 662 So.2d 738 (Fla. 2d DCA 1995); Taylor v. State, 658 So.2d 635 (Fla. 2d DCA 1995); Green v. State, 643 So.2d 1177 (Fla. 2d DCA 1994).
As a probationary sentence cannot be imposed concurrently with a prison term, upon resentencing, if the court decides to impose a term of incarceration for the offense of possession of burglary tools, that sentence must be made to run concurrently with the six-year habitual offender sentence.
Reversed and remanded for resentencing.
DANAHY, A.C.J., and PATTERSON and QUINCE, JJ., concur.