Bover v. State
| Decision Date | 04 October 2001 |
| Docket Number | No. SC95649.,SC95649. |
| Citation | 797 So.2d 1246 |
| Parties | Jesus BOVER, Petitioner, v. STATE of Florida, Respondent. |
| Court | Florida Supreme Court |
Bennett H. Brummer, Public Defender, and Andrew Stanton, Assistant Public Defender, Eleventh Judicial Circuit, Miami, FL, for Petitioner.
Robert A. Butterworth, Attorney General, Michael J. Neimand, Bureau Chief Criminal Division, and Lara J. Edelstein, Assistant Attorney General, Fort Lauderdale, FL, for Respondent.
We have for review the decision in Bover v. State, 732 So.2d 1187, 1192 (Fla. 3d DCA 1999), in which the Third District Court of Appeal certified conflict with the decisions of the Second District Court of Appeal in Bell v. State, 693 So.2d 700 (Fla. 2d DCA 1997), Botelho v. State, 691 So.2d 648 (Fla. 2d DCA 1997), and Judge v. State, 596 So.2d 73 (Fla. 2d DCA 1991) (en banc), and the decision of the Fourth District Court of Appeal in Freshman v. State, 730 So.2d 351 (Fla. 4th DCA 1999). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.
This Court recently determined in Carter v. State, 786 So.2d 1173, 1180-81 (Fla. 2001), that a habitual offender sentence may be correctable as an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a), where the habitual offender statute in effect at the time of sentencing did not permit habitualization for life felonies. In so holding, we disapproved of the Third District's broad statement in Bover that no habitual offender sentence can be corrected as illegal pursuant to rule 3.800(a) if the error occurs in the adjudication of the defendant as a habitual offender. See id.
This case presents the related but distinct issue of whether a sentence based on predicate felony offenses in the record that do not satisfy the sequential conviction requirement of the habitual offender statute may be subject to correction as an illegal sentence under rule 3.800(a). For the reasons expressed in this opinion and in accordance with our reasoning in Carter, we hold that where the requisite predicate felonies essential to qualify a defendant for habitualization do not exist as a matter of law and that error is apparent from the face of the record, rule 3.800(a) can be used to correct the resulting habitual offender sentence.
Petitioner Jesus Bover was charged with eight counts of grand theft and seven counts of uttering a forged instrument for crimes committed between June 21 and September 17, 1993. See Bover, 732 So.2d at 1189. Pursuant to a plea agreement in which Bover pled no contest as a habitual offender, the trial court sentenced Bover in 1994 as a habitual offender to concurrent sentences of ten years on each of the fifteen third-degree felonies. See id. Because the trial court sentenced Bover as a habitual offender, the statutory maximum for the offense was ten years rather than five years. See §§ 775.082(3)(d), 775.084(4)(a)3, Fla. Stat. (1993); Bover, 732 So.2d at 1189.
In 1997, Bover filed a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, challenging his habitual offender sentences on the grounds that the trial court had vacated two of the predicate offenses used to qualify him for habitual offender treatment. See Bover, 732 So.2d at 1189. The trial court denied relief and the Third District affirmed. The Third District held that because the trial court had vacated only part of Bover's sentences and not the underlying adjudications in Bover's prior cases, "those cases remained available to serve as predicate offenses for habitualization." Id. at 1189 n. 4.
In 1998, Bover filed the present motion pursuant to rule 3.800(a), alleging that his habitual offender sentences were illegal because his predicate convictions did not satisfy the substantive requirements of the habitual offender statute. See id. at 1189. Specifically, Bover argued that because all the predicate offenses used to adjudicate him as a habitual offender had been imposed on June 30, 1992, they did not satisfy the sequential conviction requirement of section 775.084(5), Florida Statutes (1993). See id. This section provides:
In order to be counted as a prior felony for purposes of sentencing under this section, the felony must have resulted in a conviction sentenced separately prior to the current offense and sentenced separately from any other felony conviction that is to be counted as a prior felony.
Thus, relying on this statute, Bover contended that the trial court should "strike the habitualization and resentence him under the sentencing guidelines." Bover, 732 So.2d at 1189. The trial court denied the rule 3.800(a) motion. See id. On appeal, the State conceded that Bover's prior convictions did not satisfy the sequential conviction requirement, but contended that additional convictions existed that would satisfy the statutory requirement, but that had not been introduced at the sentencing hearing. The Third District affirmed the denial of relief, holding that a challenge to habitual offender adjudication had to be brought by a rule 3.850 motion to vacate, set aside, or correct sentence and is subject to the two-year time limitation of that rule. See id. at 1188. This appeal follows.
Only those defendants who meet the statutory criteria of the habitual offender statute qualify for sentencing as habitual offenders. Therefore, if a habitual offender sentence is imposed when, as a matter of law, the defendant was not subject to habitualization, the resulting habitual offender sentence can be corrected as illegal provided the error is apparent from the face of the record. See Carter, 786 So.2d at 1180. The Second District in both Botelho, 691 So.2d at 648, and Bell, 693 So.2d at 701, concluded that a defendant could challenge a habitual offender sentence under rule 3.800(a) where the claim was made that the defendant lacked the predicate offenses required by the habitual offender statute. Although neither Bell nor Botelho contain an extensive analysis of the rationale as to why a defendant may utilize rule 3.800(a) to challenge his or her habitual offender sentence, in Botelho the Second District relied upon its earlier decision in Judge v. State, 596 So.2d 73 (Fla. 2d DCA 1992) (en banc).
Judge Altenbernd, writing for the Second District in Judge, concluded that an improper habitual offender sentence renders a sentence illegal "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." 596 So.2d at 78. Moreover, in distinguishing rule 3.850 from rule 3.800, the Second District in Judge explained:
Rule 3.800(a) is intended to provide relief for a narrow category of cases in which the sentence imposes a penalty that is simply not authorized by law. It is concerned primarily with whether the terms and conditions of the punishment for a particular offense are permissible as a matter of law. It is not a vehicle designed to re-examine whether the procedure employed to impose the punishment comported with statutory law and due process. Unlike a motion pursuant to rule 3.850, the motion can be filed without an oath because it is designed to test issues that should not involve significant questions of fact or require a lengthy evidentiary hearing.
Id. at 77.2 Thus, citing its earlier reasoning in Judge, the Second District in Botelho concluded that if Botelho's claim that he had only one prior felony conviction, rather than the required two prior felony convictions, was true, he would be entitled to a correction of his sentence pursuant to rule 3.800(a). See Botelho, 691 So.2d at 648.
The Fourth District has reached a similar conclusion in Freshman, where the defendant claimed that his predicate offenses did not qualify him for habitual offender treatment because they were for out-of-state convictions. 730 So.2d at 352.3 The Fourth District agreed with Freshman, stating, "We find illegal a sentence for which the record, in this case the order declaring Freshman a habitual offender, affirmatively shows a failure to comport with the statutory requirements of the habitual offender statute which were not unconstitutional." Id.
Freshman, Botelho, Bell, and Judge all either impliedly or explicitly recognized that failure to comply with the statutory requirements for habitualization results in an illegal sentence correctable by rule 3.800(a).4 In contrast to these opinions of the Second and Fourth Districts, the Third District in Bover reasoned that the failure of the record to establish the requisite predicate convictions to support habitualization does not render the sentence illegal. See Bover, 732 So.2d at 1191. According to the Third District, errors in habitualizing a defendant who does not qualify as a matter of law for habitualization cannot provide a basis for a collateral attack under 3.800(a); the resulting habitual offender sentence is not illegal as long as the length of the sentence is within the statutory maximum allowed by the habitual offender statute. See id.
In Carter, we determined that the imposition of a habitual offender sentence for a life felony where the necessary statutory requirements of the habitual offender statute had not been satisfied constituted an illegal sentence. Id. at 1180. In so holding, we adopted Judge Farmer's definition in Blakley v. State, 746 So.2d 1182, 1187 (Fla. 4th DCA 1999), that a sentence is "illegal" if it imposes a "kind of punishment that no judge under the entire body of sentencing statutes could possibly inflict under any set of factual circumstances." Carter, 786 So.2d at 1181. We thus disapproved of the Third District's broad statement that no sentence based on an error in a trial court's finding that a defendant qualified for habitual offender treatment could be corrected as illegal. See id. If we accepted the framework advocated...
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