Blakley v. State, 99-1919.
Decision Date | 08 December 1999 |
Docket Number | No. 99-1919.,99-1919. |
Parties | Larry BLAKLEY, Appellant, v. STATE of Florida, Appellee. |
Court | Florida District Court of Appeals |
Larry Blakley, Belle Glade, pro se.
No appearance required for appellee.
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) (). 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:
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:
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:
708 So.2d at 265; see also Hopping v. State, 674 So.2d 905, 906 (Fla. 1st DCA 1996) (Benton, J., dissenting).
One should carefully compare the sentence not deemed illegal as double jeopardy in Callaway from the sentence deemed illegal as double jeopardy three years later in Hopping. The Callaway sentence involved multiple consecutive habitual felony offender sentences from a single episode, and it was not deemed illegal as double jeopardy. The illegal sentence in Hopping, however, was qualitatively different. The trial judge actually increased the sentence in a postconviction relief proceeding brought by the defendant. The difference is significant, and not just because no evidentiary hearing is necessary to ascertain the illegality. Separate sentences for each of multiple crimes committed during a criminal episode may not amount to unconstitutional enhancements as such if the statute prescribing the crime and the penalty statute expressly provide for and allow this kind of multiple punishment. No judge, however, can increase a sentence once it has been imposed and the prisoner has begun to serve it.
This brings us to the decision on which this defendant apparently relies. In State v. Mancino, 714 So.2d 429 (Fla.1998), the allegedly illegal sentence involved the failure to give jail credit. The record in that case showed without dispute that the defendant had spent time in jail before conviction and sentencing and was therefore entitled as a matter of law to credit against his sentence for the time he had already served.
The supreme court began by observing that "until very recently there was little doubt that rule 3.800 could be used to resolve jail credit issues." 714 So.2d at 430. The court also recalled its Callaway holding that "rule 3.800(a) motions should be `limited to those sentencing issues that can be resolved as a matter of law without an evidentiary determination.'" 714 So.2d at 432. But the court also agreed with Judge Barkdull that:
""
714 So.2d at 432, quoting from Hopping v. State, 650 So.2d 1087, 1088 (Fla. 3rd DCA 1995). The court then referred to its own Hopping decision, saying:
"we relied on the fact that the record reflected without dispute that the trial court had illegally increased the defendant's sentence after the defendant had already begun service of that sentence."
In explaining its ultimate holding, the court said:
It is thus abundantly clear to us from the entire opinion in Mancino that its only holding is that a sentence imposed without a proper credit for time served before sentencing may be illegal within the ambit of ...
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