601 F.2d 184 (5th Cir. 1979), 79-1003, Sotto v. Wainwright

Docket Nº:79-1003.
Citation:601 F.2d 184
Party Name:Anibal SOTTO, Petitioner-Appellee, v. Louie L. WAINWRIGHT, Secretary, Department of Corrections, Respondent-Appellant. Joaquin A. AMOR, Petitioner-Appellee, v. Louie L. WAINWRIGHT, Secretary, Department of Corrections, Respondent-Appellant.
Case Date:August 22, 1979
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 184

601 F.2d 184 (5th Cir. 1979)

Anibal SOTTO, Petitioner-Appellee,

v.

Louie L. WAINWRIGHT, Secretary, Department of Corrections,

Respondent-Appellant.

Joaquin A. AMOR, Petitioner-Appellee,

v.

Louie L. WAINWRIGHT, Secretary, Department of Corrections,

Respondent-Appellant.

No. 79-1003.

United States Court of Appeals, Fifth Circuit

August 22, 1979

Page 185

[Copyrighted Material Omitted]

Page 186

Steven R. Jacob, Asst. Atty. Gen., Miami, Fla., for respondent-appellant.

Geoffrey C. Fleck, Miami, Fla., for petitioner-appellee.

Appeal from the United States District Court for the Southern District of Florida.

Before WISDOM, AINSWORTH and RONEY, Circuit Judges.

AINSWORTH, Circuit Judge:

In this habeas corpus action, we must decide the constitutionality as applied of Florida's Rule of Criminal Procedure 3.800(b), which governs the reduction of sentences by the state's trial courts. The district court, adopting the report of a United States magistrate, held that strict application of the rule had denied petitioners "fundamental due process" and accordingly granted relief. However, we conclude that the rule's application in this case did not violate the Constitution and therefore reverse.

I. Background

On March 25, 1975, in the Circuit Court (trial court) for Dade County, Florida, petitioners Anibal Sotto and Joaquin Amor were convicted of aiding or assisting in conducting a lottery, possession of lottery tickets and possession of lottery paraphernalia and sentenced to three years in prison. After Florida's Third District Court of Appeal affirmed the convictions, Soto v. State, 325 So.2d 414 (Dist.Ct.App., 1976), Sotto and Amor petitioned the Florida Supreme Court for writs of certiorari; the court denied the petition on July 30, 1976. Sotto v. State, 336 So.2d 1184 (Fla., 1976).

Pursuant to Fla.R.Crim.P. 3.800(b), on September 23, 1976 petitioners filed in the trial court a motion to mitigate their sentences. Under the version of Rule 3.800(b) then in force,

A court may reduce a legal sentence imposed by it at the same term of court at which it has been imposed, or if such term ends less than sixty days after the imposition of the sentence, then within sixty days after such imposition, or within sixty days after receipt by the court of a mandate issued by the appellate court upon affirmance of the judgment and/or sentence upon an original appeal, or within

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sixty days after receipt by the court of a certified copy of an order of the appellate court dismissing an original appeal from the judgment and/or sentence, or, if further appellate review is sought in a higher court or in successively higher courts, then within sixty days after the highest state or federal court to which a timely appeal has been taken under authority of law, or in which a petition for certiorari has been timely filed under authority of law, has entered an order of affirmance or an order dismissing the appeal and/or denying certiorari. 1

The court scheduled a hearing on the motion to reduce sentences for September 29, 1976. Judge George Orr, who had presided over petitioners' trial, had since been transferred to another division of the court, with Judge Paul Baker assuming his caseload, and a question arose at the hearing as to which judge should rule on the motion. The Chief Judge of the Dade County Circuit Court determined that Judge Baker should handle the matter and directed him to review the case file, trial testimony and presentence investigation report. Judge Baker ordered delivery of the case file and presentence report and rescheduled the hearing for November 22, 1976. On that date, the presentence report had still not been provided; the judge instructed counsel to supply a trial transcript and postponed the hearing until November 24. Neither the report nor the transcript was delivered by that date, however, so the judge reset the hearing for December 7. After reviewing the trial transcript and presentence investigation report, the court conducted the hearing on December 7 and granted petitioners' motion to reduce sentence. Thus, the court's decision came long after the expiration of sixty days from the denial of certiorari by the Florida Supreme Court. The judge vacated Sotto's three-year prison sentence, placing him on five years' probation and ordering payment of a $5,000 fine, and also vacated Amor's prison term, sentencing him to one year in the County Jail and requiring payment of a $3,500 fine. 2

The State of Florida, through its official custodian, respondent Wainwright, petitioned Florida's Third District Court of Appeal for a writ of certiorari, contending that under Rule 3.800(b) the trial court lacked jurisdiction to rule on petitioners' motion to reduce sentence, because more than sixty days had passed since the Florida Supreme Court's denial of certiorari on direct review

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before the trial court entered its order reducing the sentences of petitioners. The District Court of Appeal granted the writ and agreed that Rule 3.800(b) allowed a trial court to reduce a legal sentence only "within sixty days after the imposition of sentence or within sixty days after the highest state or federal court, to which a timely appeal or petition for writ of certiorari has been taken, has entered an order of affirmance, an order dismissing the appeal or an order denying certiorari." Citing a long line of consistent Florida state court decisions, the court said that "(t)he law is clear that a trial court . . . lacks the jurisdiction to mitigate a legal sentence after the above sixty day periods have elapsed" and observed that "(s)ince this is a jurisdictional matter, we must of necessity reject the defendants' contentions which seek to excuse the trial court's delay in mitigating the sentences." The District Court of Appeal therefore quashed the trial court's mitigation order and reinstated the original three-year prison terms. State v. Sotto, 348 So.2d 1222, 1223-24 (Dist.Ct.App., 1977). The Court of Appeal rejected Sotto and Amor's petition for rehearing and the Florida Supreme Court subsequently denied certiorari, thereby exhausting petitioners' state remedies. Sotto v. State, 359 So.2d 1219 (Fla., 1978).

On August 16, 1978, Sotto and Amor filed in the United States District Court for the Southern District of Florida the habeas corpus petition involved in this appeal. They alleged that Florida R.Crim.P. 3.800(b) as applied had "worked an intolerable injustice upon the petitioners in this case," violating their rights to equal protection and counsel, inflicting cruel and unusual punishment and denying them both procedural and substantive due process.

A United States magistrate entered a report on November 3, 1978, recommending that the district court afford petitioners relief. The magistrate relied primarily upon our recent decision in United States v. Mendoza, 5 Cir., 1978, 565 F.2d 1285, modified on rehearing en banc, 581 F.2d 89, interpreting Fed.R.Crim.P. 35, the federal counterpart to Florida's Rule 3.800(b), to conclude that petitioners had been denied "fundamental due process." Calling it "neither fair nor just" that "defendants who are fortunate enough to file their motions when the Court is in a position...

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