Blakley v. State, No. 99-1919.

• Court: Court of Appeal of Florida (US)
• Writing for the Court: FARMER, J.
• Citation: 746 So.2d 1182
• Parties: Larry BLAKLEY, Appellant, v. STATE of Florida, Appellee.
• Docket Number: No. 99-1919.
• Decision Date: 08 December 1999

746 So.2d 1182

Larry BLAKLEY, Appellant,
v.
STATE of Florida, Appellee

No. 99-1919.

District Court of Appeal of Florida, Fourth District.

December 8, 1999.

746 So.2d 1183

Larry Blakley, Belle Glade, pro se

No appearance required for appellee.

FARMER, J.

This is an appeal of an order denying relief from an illegal sentence under rule 3.800(a). See Fla.R.Crim.P. 3.800(a) ("A court may at any time correct an illegal sentence imposed by it or an incorrect calculation made by it in a sentencing guideline scoresheet...."). Ordinarily our affirmance would be without opinion, but we write in this case to clarify whether the kind of sentencing error defendant has alleged qualifies as an illegal sentence within the meaning of the rule.

There are four pertinent decisions by the supreme court in this decade addressing what constitutes an illegal sentence correctable at any time under the salutary provisions of rule 3.800(a). In Davis v. State, 661 So.2d 1193 (Fla.1995), that Court considered a claim that a sentence departing from the guidelines without contemporaneous written reasons was an illegal sentence correctable at any time, even in a collateral proceeding for post-conviction relief. In rejecting that contention the court said:

"Clearly, an illegal sentence is one that can be addressed at any time. We have previously rejected, however, the contention that the failure to file written findings for a departure sentence constitutes an illegal sentence. See Gartrell v. State, 626 So.2d 1364 (Fla.1993) (a sentence to less than the guidelines range without written reasons is not an illegal sentence within the meaning of rule 3.800(a)). We reiterate that conclusion here, concluding that an illegal sentence is one that exceeds the maximum period set forth by law for a particular offense without regard to the guidelines. Although we did indicate in dicta in [State v. Whitfield, 487 So.2d 1045 (Fla.1986)] that the absence of statutorily mandated findings renders a sentence illegal, we did so in summarizing case law that dealt with whether a contemporaneous objection was necessary to preserve an issue for appeal. The actual error at issue in Whitfield, however, involved an erroneous scoresheet calculation that we found was to be addressed under rule 3.800.3 In light of the contradiction between the holding in Gartrell and our statements in Whitfield, we recede from Whitfield to the extent that the dicta in that case can be read as holding that the failure to file written findings for a departure sentence constitutes an illegal sentence. Only if the sentence exceeds the maximum allowed by law would the sentence be illegal.

3 The language in Whitfield does imply that the scoresheet guidelines error at issue was the equivalent of departing from the guidelines without making the mandatory written findings; however, a closer review of the facts in Whitfield reflects that the error in

746 So.2d 1184

that case involved a situation where the State had erroneously included victim injury points on the scoresheet. In fact, in certifying the question in that case, the district court was specifically asking if the contemporaneous objection exception in State v. Rhoden, 448 So.2d 1013 (Fla.1984), applied only to situations where a trial judge failed to make written findings or whether it applied in the instant case as well."

[c.o., emphasis supplied.]

661 So.2d at 1196.

It is clear from Davis that departure sentences imposed without compliance with the guidelines statutes do not constitute an illegal sentence. On its clear holding, Davis controls the outcome in this case—which effectually involves a claim of departure from the guidelines—unless later decisions of the court have receded from these aspects of the Davis holding. We do not believe that any of them have that kind of effect.

On the same day that Davis was decided the court also released its opinion in State v. Callaway, 658 So.2d 983 (Fla.1995). The issue there was whether consecutive habitual felony offender sentences for multiple offenses arising out of the same criminal episode constitute an illegal sentence. In its rejection of the contention, the court expressly relied on its Davis decision and added:

"A rule 3.800 motion can be filed at any time, even decades after a sentence has been imposed, and as such, its subject matter is limited to those sentencing issues that can be resolved as a matter of law without an evidentiary determination.... Resolution of the issue will require an evidentiary determination and thus should be dealt with under rule 3.850 which specifically provides for an evidentiary hearing."

658 So.2d at 988.

Not three years later, in Hopping v. State, 708 So.2d 263 (Fla.1998), the court confronted a claim that a sentence was illegal because, in violation of the double jeopardy clause, it was unconstitutionally increased after imposition of the original sentence. This time the court concluded that an illegal sentence was in fact involved, even though the sentence as such did not exceed a statutory maximum. The court explained:

"In the instant case, it can be determined `as a matter of law without an evidentiary [hearing]' that

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