Brown v. State, 93-03533
| Decision Date | 11 March 1994 |
| Docket Number | No. 93-03533,93-03533 |
| Citation | 633 So.2d 112 |
| Parties | 19 Fla. L. Weekly D567 James R. BROWN, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
On motion to correct illegal sentences, trial court must determine whether it properly invoked statute requiring mandatory minimum sentences for use of firearm in connection with robberies, rather than requiring defendant to raise issue on appeal, where defendant sufficiently alleged prejudice by application of the statute; matter was not appropriate for decision on direct appeal where appellate record lacked necessary exhibits for District Court of Appeal to determine claim that there was no credible evidence that defendant actually possessed firearm and trial court had not reached the merits of the motion. West's F.S.A. Sec. 775.087(2).
James R. Brown appeals the summary denial of his motion to correct illegal sentences. We conclude that the trial court was correct in denying Brown's motion which alleged that he should have been treated as a youthful offender. We, however, agree that the second sentencing issue which Brown has raised requires reversal.
In his motion, Brown seeks deletion of three mandatory minimum sentences required by section 775.087(2), Florida Statutes (1989). In one court appearance, Brown pleaded no contest to three robberies with a firearm, one robbery with a weapon, two robberies, and one attempted robbery with a weapon. The trial court ordered a presentence investigation. In his motion to correct illegal sentences, Brown alleged "[T]he court proceeded to the plea colloquy: Defendant denied having used a firearm in any of the alleged robbery offenses and had a tire iron tucked within his clothing that appeared to be a firearm by victims." Brown further alleged that the plea agreement did not state armed robbery with a firearm and that the trial court, without any credible evidence to support the mandatory minimum sentences, imposed minimum mandatory sentences in three cases.
The trial court denied Brown's motion, concluding that these matters must be brought up on direct appeal and are not subject to collateral attack. In this court's recent decision of Poiteer v. State, 627 So.2d 526 (Fla. 2d DCA 1993), the trial court imposed a minimum mandatory sentence on an armed robbery charge. The defendant's motion to correct an illegal sentence alleged that there was no showing or evidence to establish that the defendant was in actual possession of a firearm during the commission of the robbery. The trial court in Poiteer denied the motion, ruling that the defendant must raise the issue on direct appeal. This court reversed and held that remand to the trial court was necessary because the defendant sufficiently alleged prejudice by the application of section 775.087(2), the appellate record lacked the necessary exhibits for this court to determine if the defendant's claim could be refuted and the trial court did not reach the merits of the motion. Once remanded, it is incumbent upon the trial court to determine whether it properly invoked section 775.087(2). We, therefore, remand this case to the trial court to follow the directions set forth in Poiteer.
Reversed and remanded.
I concur in the reversal of this case to allow Mr. Brown to challenge the lawfulness of his three minimum mandatory sentences on remand. I dissent from that part of the majority opinion which concludes the minimum mandatory terms in this case involve matters of law reviewable as illegal sentences under rule 3.800(a). In my opinion, Mr. Brown's challenge to his sentences involves factual issues that should be raised in a sworn motion filed pursuant to rule 3.850.
The record establishes that the defendant was specifically charged with offenses requiring minimum mandatory sentences. He entered a written plea of no contest and received sentences authorized by law. He did not appeal. As a matter of law, his sentences are authorized on the face of the record.
I understand the tendency when evaluating the merits of a postconviction motion to regard any potentially serious sentencing error as an issue involving an "illegal" sentence. But there are many valid reasons to restrict the concept of an illegal sentence to circumstances in which, on the face of the defendant's criminal record, the sentence is not permitted by law. See Judge v. State, 596 So.2d 73 (Fla. 2d DCA 1991), review denied, 613 So.2d 5 (Fla.1992). If a sentencing error involves a significant factual issue, it should be reviewed within the time restraints and the other limitations imposed by rule 3.850. My analysis probably conflicts with the analysis used in Poiteer v. State, 627 So.2d 526 (Fla. 2d DCA 1993), and other Second District decisions. If writing on a clean slate, I would follow the conflicting decision of the Third District in Young v. State, 616 So.2d 1133 (Fla. 3d DCA 1993).
In seven separate informations, Mr. Brown was charged with three robberies with a firearm, one robbery with a weapon, two robberies, and one attempted robbery with a weapon. The three relevant informations expressly alleged that the defendant personally used a handgun during the commission of the robbery. The other charges either did not allege the use of a deadly weapon or expressly alleged the use of a tire iron.
In January 1992, Mr. Brown signed a written agreement in which he pleaded no contest on an open basis. Although the defendant now argues that the written plea agreement uses the description "robbery" and not "armed robbery," the written judgment shows that he was convicted as charged. His scoresheet permits a sentence up to twelve years. Mr. Brown's written sentences are all concurrent and less than ten years. He received concurrent three-year minimum mandatory sentences for those cases only in which the information expressly alleged the use of a firearm. Mr. Brown did not appeal the limited issues that he reserved upon entering his nolo contendere plea.
Mr. Brown filed his postconviction motion within two years of the entry of what he claims are illegal sentences. Contrary to the charges in the informations, the motion alleges that Mr. Brown always used a tire iron and never used a handgun while committing these robberies. He contends his attorney knew these facts and that the written plea agreement did not expressly admit the use of a handgun.
The trial court denied the motion for two reasons. First, the trial court ruled that Mr. Brown was required to raise this issue on direct appeal. Second, it suggested that none of the sentencing issues raised in the motion involved an illegal sentence as explained in Judge. Mr. Brown moved for rehearing, citing cases that had allowed the issue of a minimum mandatory sentence to be raised pursuant to rule 3.850 and requesting leave to amend the motion to satisfy the requirements of that rule. The trial court denied the motion for rehearing.
While I agree that the trial court erroneously decided Mr. Brown was obligated to raise this issue on direct appeal, I conclude that it correctly determined Mr. Brown had no basis to challenge these sentences as illegal under rule 3.800. It is clear from the materials attached to Mr. Brown's motion and the trial court's order that the three concurrent minimum mandatory sentences were facially legal. On the other hand, the defendant may have a factual basis to challenge his sentences under rule 3.850. Those factual issues are not barred by his failure to appeal the sentences. Because a motion under rule 3.850 would be timely in this case, I conclude that the trial court should have granted Mr. Brown's motion for rehearing.
Thirty years ago, the notion that a sentence could be "unlawful" or "erroneous" or "imposed in violation" of the law without also being "illegal" would probably have seemed odd to most lawyers and judges. In 1961, when the legislature adopted the precursor to rule 3.800, a sentence was generally either legal or illegal. See Sec. 921.24, Fla.Stat. (1965); ch. 61-39, Laws of Fla. At that time, one needed only to examine the information, the conviction, the sentence, and the statutes to determine whether the sentence was legally permissible. Occasionally, one would also need to examine the public records for the defendant's prior convictions. See generally Note, Judgment and Sentence in a Florida Criminal Case, 16 U.Fla.L.Rev. 312 (1963).
Even fifteen years ago, a trial judge still had great discretion in determining the length and conditions of a sentence. That discretion was not reviewable in most cases by the appellate courts. See ch. 924, Fla.Stat. (1977). Instead, the trial court's discretion was controlled or reviewed primarily by the Parole and Probation Commission in making case-specific decisions to parole prisoners before they had served their entire sentence. See Sec. 947.17, Fla.Stat. (1977).
A radical change occurred in this process with the advent of sentencing guidelines, minimum mandatory terms, and complex sentencing rules for habitual felony offender categories. The trial judge is now forced to make sentencing decisions based upon many case-specific factual matters. The review of this process is now vested primarily in the appellate courts instead of a parole board. The appellate courts have been given broad new jurisdiction to review sentencing errors on direct appeal. See Fla.R.App.P. 9.140(b)(1)(E); Sec. 921.001(5), Fla.Stat. (1991). As a result, a trial judge may now impose an "erroneous" or "unlawful" sentence in violation of these sentencing laws--even though the length and basic conditions of the sentence are not facially "illegal."
With these developments it has become...
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