Bowers v. State

• Decision Date: 02 May 2003
• Docket Number: No. 2D02-5458.,2D02-5458.
• Citation: 845 So.2d 243
• Parties: Ferman BOWERS, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

845 So.2d 243

Ferman BOWERS, Appellant, v. STATE of Florida, Appellee.

No. 2D02-5458.

District Court of Appeal of Florida, Second District.

May 2, 2003.

DAVIS, Judge.

Ferman Bowers appeals the denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). In case number 90-4686, we affirm the trial court's order denying relief. However, we reverse the trial court's order denying relief as to case number 90-2557.

On March 14, 1990, Bowers pleaded guilty to burglary of a conveyance in case number 90-2557. The trial court sentenced Bowers to two years' community control. On April 18, 1990, Bowers pleaded nolo contendere to possession of cocaine (count one) and possession of drug paraphernalia (count two) in case number 90-4686. The trial court sentenced Bowers to two years' community control on count one and one year community control on count two to run concurrent to count one. Although the record is incomplete, the trial court must have violated Bowers' community control in case 90-2557 because the record indicates that the trial court again placed Bowers on community control for two years in case number 90-2557 on April 18, 1990, ordering the community control to run concurrent with the community control in case number 90-4686. The judgment and sentences indicate that Bowers was sentenced as a subsequent felony offender in both cases. On October 9, 1990, the trial court found that Bowers violated his community control in both cases. In case number 90-2557, the trial court sentenced him as a subsequent felony offender to ten years in prison. In case number 90-4686, the trial court sentenced him as a subsequent felony offender to ten years in prison on count one and to one year in prison on count two to run consecutive to the sentence on count one. The trial court ordered the sentences in case number 90-4686 to run consecutive to the sentence in case number 90-2557.

Bowers claims that his original subsequent felony offender sentences of community control in both cases are illegal because he entered an open plea to all counts. Therefore, he claims his subsequent felony offender sentences upon violation of community control are also illegal. The record in case number 90-4686 refutes this claim. The plea form signed by Bowers in case number 90-4686 demonstrates that he was aware he was pleading no contest in exchange for a habitual offender sentence of community control. Therefore, his plea was negotiated, and his sentence is legal. See Pankhurst v. State, 796 So.2d 618 (Fla. 2d DCA 2001); Hampton v. State, 803 So.2d 813 (Fla. 2d DCA 2001), review denied, 819 So.2d 135 (Fla.2002).

As for case number 90-2557, the record does not demonstrate that Bowers entered a negotiated plea in exchange for a subsequent felony offender sentence of community control. The plea form in case number 90-2557 makes no mention of any type of habitual offender sentence. In addition, the record of the plea hearing is not available. Because the record cannot demonstrate that Bowers entered into a negotiated plea agreement with either the State or the trial court for his community control sentence in case number 90-2557, Bowers is entitled to resentencing under the guidelines. See Chaney v. State, 805 So.2d 1039 (Fla. 2d DCA 2002).

Furthermore, the doctrine of laches does not bar Bowers from raising this claim. Laches is sustainable in a criminal case where there has been both a lack of due diligence on the defendant's part in bringing forth the claim and prejudice to the State. Wright v. State, 711 So.2d 66 (Fla. 3d DCA 1998). Bowers did not lack in due diligence in bringing forth this claim because the ground under which he seeks relief was not available until Pankhurst and its...