Bover v. State

• Decision Date: 28 April 1999
• Docket Number: No. 98-1835.,98-1835.
• Citation: 732 So.2d 1187
• Parties: Jesus BOVER, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

732 So.2d 1187

Jesus BOVER, Appellant, v. The STATE of Florida, Appellee.

No. 98-1835.

District Court of Appeal of Florida, Third District.

April 28, 1999.

Bennett H. Brummer, Public Defender, and Andrew Stanton, Assistant Public Defender, for appellant.

Robert A. Butterworth, Attorney General, and Lara J. Edelstein, Assistant Attorney General, for appellee.

Before COPE, LEVY, and SORONDO, JJ.

COPE, J.

The question before us is whether a defendant may use Florida Rule of Criminal Procedure 3.800(a) to challenge his habitual offender adjudication. Defendant-appellant Jesus Bover contends that the predicate offenses introduced at his sentencing hearing did not qualify him under the applicable statutes, because they did not satisfy the sequential conviction rule. We conclude that where the challenge is to habitual offender adjudication, the claim is one which must be brought under Florida Rule of Criminal Procedure 3.850, and is subject to that rule's two year time limit.

I.

Defendant was charged with eight counts of grand theft and seven counts of uttering a forged instrument for crimes he committed in the period between June 21 and September 17, 1993.¹ His sentencing guidelines scoresheet reflected fifty-two prior crimes, resulting in a recommended sentence of life imprisonment. That being so, the defendant if convicted of the fifteen pending charges could have been sentenced consecutively on each, for a total of 75 years. See Branam v. State, 554 So.2d 512, 513-14 (Fla.1990) ("[I]n those instances where the statutory minimums or maximums preclude sentencing within the guidelines recommendation, the trial judge must impose either concurrent or consecutive sentences, as the case may be, in order to come as close as possible to the guidelines scoresheet recommendation."); Alvarez v. State, 358 So.2d 10, 12 (Fla. 1978)(if sentence to lengthy term of years presumptively exceeds life expectancy of defendant, it should be considered, in essence, a life sentence).²

The State and the defendant entered into a plea bargain whereby defendant would plead no contest as a habitual offender in exchange for ten-year concurrent sentences on all counts. Since defendant was being sentenced as a habitual offender, the legal maximum sentence for each third-degree felony was ten years. See § 775.084(4)(a)3, Fla. Stat. (1993). Defendant was sentenced accordingly in 1994.

In 1997, defendant filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, contending that his habitualization was improper because in separate proceedings, he had received postconviction relief with respect to three prior crimes, see Bover v. State, 671 So.2d 828, 829-30 (Fla. 3d DCA 1996), two of which had been used as predicate offenses to qualify him as a habitual offender.³ The trial court properly denied defendant's 1997 Rule 3.850 motion, and this court affirmed.⁴ See Bover v. State, 699 So.2d 1384 (Fla. 3d DCA 1997)(table).

In 1998, defendant filed a motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a). In the motion defendant asserted that all of the predicate offenses used to adjudicate him as a habitual offender had been imposed on June 30, 1992, and thus did not satisfy the sequential conviction rule. See § 775.084(5), Fla. Stat. (1993).⁵ Defendant argued that since he did not have the required predicate convictions for habitualization, the court should strike the habitualization and resentence him under the sentencing guidelines. The trial court denied the Rule 3.800(a) motion, and defendant has appealed.⁶

III.

In raising his claim under Rule 3.800(a), the defendant relies on Judge v. State, 596 So.2d 73 (Fla. 2d DCA 1991) (en banc), which states:

[W]e conclude that a habitual offender sentence is illegal for purposes of rule 3.800(a) only if: 1) the terms or conditions of the sentence exceed those authorized by section 775.084 for the adjudicated offense, or 2) a prior offense essential to categorize the defendant as a habitual offender does not actually exist. In either of these circumstances, the sentence does not fall within the maximum authorized by law and is not a sentence that the trial court could, as a matter of law, have imposed. Such an error can be determined at any time from a review of the defendant's criminal records.

Id. at 78 (emphasis added); see also Freshman v. State, 24 Fla. L. Weekly D707, 730 So.2d 351 (Fla. 4th DCA 1999); Bell v. State, 693 So.2d 700 (Fla. 2d DCA 1997); Botelho v. State, 691 So.2d 648 (Fla. 2d DCA 1997).

The logic of Judge is that the habitual offender statute increases the legal maximum term. In the present case, habitualization of defendant means that for his third-degree felonies the regular five-year maximum becomes ten. See § 775.084(c)3, Fla. Stat. (1993). Under Judge, if the defendant did not truly have the predicate offenses to qualify for habitualization, the maximum should have stayed at five years and anything over that figure is "illegal" within the meaning of Rule 3.800(a).

In our view, there is a flaw in the logic. Habitualization is a two-step process. In the first step, the defendant is adjudicated to be a habitual offender. Once that is done, the trial court knows what the permissible legal maximum may be. In the second step, the court imposes sentence.

For Rule 3.800(a) purposes, the difference between the two steps is important. Rule 3.800(a) is by its terms confined to challenging an "illegal" sentence. Imposition of sentence occurs in the second step of the habitualization process. The defendant's real target in this case is not the second step but the first: the adjudication of defendant as a habitual offender.

As traditionally thought of, an illegal sentence is one which exceeds the maximum allowed by law. See Davis v. State, 661 So.2d 1193, 1196 (Fla.1995). When a Rule 3.800(a) motion alleges that the defendant has received an "illegal" sentence, the traditional inquiry is to examine the face of the judgment and the sentencing order to see whether a sentence has been imposed in excess of that allowed by law. In the case now before us, the judgments are third-degree felonies. The sentencing order reflects that the defendant was adjudicated as a habitual offender. Under the habitual offender statute, the legal maximum for a habitual offender for a third-degree felony is ten years. See § 775.084(4)(a)3, Fla. Stat. (1993). The ten-year sentence imposed by the trial court is within the legal maximum.

Boiled down, defendant's motion alleges that his plea was involuntary, or he received ineffective assistance of counsel, because counsel failed to discover that the predicate convictions did not satisfy the sequential conviction rule. These are classic claims for relief under Rule 3.850. Rule 3.850 is very specific on the point: it states that a Rule 3.850 motion is the proper remedy where the defendant contends "that the plea was given involuntarily, or that the judgment or sentence is otherwise subject to collateral attack...." Fla. R.Crim. P. 3.850(a). Under Rule 3.850, the motion had to be made within two years, and is time-barred.

To put the matter differently, consider the hypothetical case of a defendant convicted of a second-degree felony which carries a legal maximum sentence of fifteen years. See § 775.082(3)(c), Fla. Stat. (1993). Assume that the evidence was legally insufficient to establish one of the required elements of the offense, without which the crime is a third-degree felony carrying a legal maximum of five years. Assume that through ineffective assistance of counsel, this issue is not raised in the trial court. Defendant is convicted of the second-degree felony and sentenced to the legal maximum of fifteen years.

In this hypothetical case, the error is subject to correction under Rule 3.850 if the defendant files the motion within the required two-year time limit. If, however, the defendant does not file the motion until after the time has run, then the defendant's claim will be time-barred.

It is difficult to see why, under the logic of Judge and the other cited cases, a defendant should be allowed to attack the habitual offender adjudication at any time under Rule 3.800(a), but there would be a two-year time limit under Rule 3.850 for any claim of ineffective assistance or involuntary plea leading up to imposition of the judgments. Rule 3.850 and its time limit should apply uniformly to both situations.

We think the position we take draws support from the Florida Supreme Court's decision in State v. Callaway, 658 So.2d 983 (Fla.1995), receded from, in part on other grounds, Dixon v. State, 24 Fla. L. Weekly S67, S68, 730 So.2d 265 (Fla. 1999). In Callaway, the defendant had been given consecutive habitual offender sentences. See 658 So.2d at 985. Consecutive habitual offender sentences are permissible for multiple offenses arising out of different criminal episodes, see Hale v. State, 630 So.2d 521, 524-25 (Fla.1993), but are not allowed "for multiple offenses arising out of the same criminal episode." Callaway, 658 So.2d at 985.

In Callaway the question was whether Rule 3.800(a) could be used to advance a claim that consecutive habitual sentences had been wrongly imposed in violation of Hale. The Florida Supreme Court's answer was no, because:

Whether a Hale sentencing error has occurred will require a determination of whether the offenses for which a defendant has been sentenced arose out of a single criminal episode. We agree with the district court, that this issue is not a pure question of law. As the district court recognized, "resolution of this issue depends upon factual evidence involving the times, places, and circumstances of the offense," and often cannot be determined from the face of the record.... Resolution of the issue ... should be dealt with under rule 3.850 which specifically provides for an evidentiary hearing.

Id. at 988 (citations omitted; emphasis added).

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