Buss v. Reichman

• Decision Date: 12 January 2011
• Docket Number: No. 4D10–3613.,4D10–3613.
• Citation: 53 So.3d 339
• Parties: Edwin G. BUSS, Secretary, Florida Department of Corrections, Appellant,v.Robert Edwin REICHMAN, a/k/a Robert Alexander Wilson, a/k/a Robert Edward Stillman, a/k/a Edward Stillman, Appellee.
• Court: Florida District Court of Appeals

53 So.3d 339

Edwin G. BUSS, Secretary, Florida Department of Corrections, Appellant,

v.Robert Edwin REICHMAN, a/k/a Robert Alexander Wilson, a/k/a Robert Edward Stillman, a/k/a Edward Stillman, Appellee.

No. 4D10–3613.

District Court of Appeal of Florida, Fourth District.

Jan. 12, 2011.

Sheron Wells, Tallahassee, for appellant.Robert Edwin Reichman, Florida City, pro se.PER CURIAM.

The Department of Corrections (DOC) sought emergency review of an order from the Nineteenth Judicial Circuit (the habeas court) granting a prisoner's petition for writ of habeas corpus and ordering his release. The case was initially treated as a petition for writ of certiorari. However, because the state can appeal an order discharging a prisoner on habeas corpus, we redesignate this case as an appeal and treat the petition and response as the briefs and the appendix as the record on appeal. § 924.07(1)(f), Fla. Stat. (2010); Fla. R.App. P. 9.040(c).

The habeas court's conclusion that the prisoner, Robert Reichman, was entitled to immediate release is erroneous as a matter of law. Further, the issue considered by the habeas court was already decided adversely to Reichman by the sentencing court in a rule 3.850 motion, and the habeas corpus petition was procedurally barred. Accordingly, we reverse.

Facts

In 1984, a federal court sentenced Reichman to twenty years in prison for bank robbery. In 1989, he entered a negotiated plea in Escambia County circuit court case number 88–3633 to escape, burglary with an assault, and robbery. At the time of the plea, and unbeknownst to the sentencing court, Reichman also had a pending parole violation in a different federal case. After entering his state plea, he was released to federal authorities to serve the twenty-year bank robbery sentence. Later in 1989, pursuant to his plea agreement, he was sentenced in absentia in Escambia County to twenty-two years in prison. The sentencing order provided that the sentence was to run consecutive to “federal sentence now serving.”

In 1991, his federal parole was revoked, and he was required to serve the balance of the original sentence consecutive to the federal bank robbery sentence. He completed the federal bank robbery sentence on February 12, 2000 and began serving his federal parole revocation sentence. His federal parole sentence ended January 23, 2004, and on April 9, 2004, he was returned to Florida to serve his twenty-two-year state sentence.

Later in 2004, he filed a rule 3.850 motion in the sentencing court in Escambia County which treated his motion as timely filed. One of the claims raised in his motion was that his twenty-two-year state sentence was supposed to run consecutive only to his initial federal bank robbery sentence. He argued that he should have begun serving his state sentence when the first federal sentence ended on February 12, 2000 and he should receive credit towards his state sentence from that date.

In denying this claim, the sentencing court ruled:

The Court does not construe its instruction that the sentence be consecutive to the “federal sentence now serving” to mean that the state sentence began immediately upon the conclusion of Defendant's initial federal sentence. Rather, it was the intent of the Court only that Defendant's state prison sentence should not be served concurrently with his federal prison sentence and should be served at such time that Defendant was released from federal custody.

Reichman appealed the sentencing court's order, and the First District Court of Appeal affirmed without a written opinion. Reichman v. State, 905 So.2d 128 (Fla. 1st DCA 2005).

In 2008, while incarcerated in Okeechobee County, Reichman filed a petition for writ of habeas corpus in the Nineteenth Judicial Circuit which has jurisdiction over the prison where he was housed. Again, he argued that the intent of his plea agreement was that the twenty-two-year state sentence would commence when he completed the federal bank robbery sentence and not upon completion of his entire federal term. He argued that the DOC was not applying his sentence as intended by the sentencing court. According to Reichman, he was entitled to immediate release because his Escambia County sentence should have expired. In his petition, Reichman did not advise the habeas court that he had litigated substantially the same issue in Escambia County and the First District Court of Appeal and that his claim was rejected.

After ordering a response from the DOC, on August 11, 2010, the habeas court issued an order agreeing with Reichman that the state sentences commenced on February 12, 2000 because the only federal sentence Reichman was “now serving” when he entered the plea in the Escambia case in 1989 was the federal bank robbery sentence. The federal parole violation was not mentioned during the Escambia County proceedings. Nothing in the record indicated the 1989 state sentences would run consecutively to the federal parole revocation sentence. The habeas court recognized that Reichman's argument was previously rejected by the sentencing court and affirmed on appeal, but the order said nothing more about the sentencing court's decision.

The habeas court held a hearing solely to determine how much gain time and credit Reichman had and whether he would be entitled to release. Following the hearing, the court ordered Reichman's immediate release. This appeal followed, and the habeas court's order was stayed.

Execution of the Sentences

The habeas court's ruling is incorrect as a matter of law. Under both Florida and federal statutory law, sentences imposed at separate times in separate cases are presumed to run consecutively unless the court directs otherwise. 18 U.S.C.A. § 3584(a); § 921.16(1), Fla. Stat. (1989). Reichman is correct that the sentencing court could not order the Florida sentences to run consecutively to a parole revocation sentence that had not yet been imposed, but that does not resolve the issue in this case. Reichman agrees that the parole revocation sentence imposed in 1991 was not ordered to run concurrently with the Florida sentences.¹ The plea transcript in this case reflects that the state sentences were to be consecutive to his “federal time.” There is no dispute that the federal and state sentences are consecutive. Rather Reichman's claim is that he was entitled to serve his state sentences immediately following the federal bank robbery sentence.

Reichman has not cited any authority that would have required federal officials to transfer him to state prison before he completed his federal sentences. A defendant who has received state and federal sentences has no due process or other constitutional right to serve the sentences in any particular order. Merchant v. State, 374 N.W.2d 245, 247 (Iowa 1985). “The order in which the sentences are served is a matter of comity between the sovereigns.” Id. (citations omitted). “The law of comity is such that the two sovereigns may decide between themselves which shall have custody of a convicted prisoner; however, the sovereign having prior jurisdiction need not waive its right to custody.” State v. Start, 229 Neb. 575, 427 N.W.2d 800, 803 (1988) (quoting Joslin v. Moseley, 420 F.2d 1204 (10th Cir.1970)).

In this case, the plea agreement was structured so that the federal authorities would commence his federal bank robbery sentence first, giving federal officials primary jurisdiction. Under the doctrine of primary jurisdiction, federal officials could maintain custody of Reichman until he completed the federal parole revocation sentence. See Merchant, 374 N.W.2d at 246. Reichman had no right to serve his consecutive sentences in any particular order.

Habeas Corpus and Collateral Challenges

Before 1963, habeas corpus was the primary vehicle for raising collateral challenges to a conviction or sentence. Following the decision in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), the Florida Supreme Court anticipated a flood of postconviction challenges and in 1963 enacted a rule of criminal procedure to allow such challenges to be raised by motion in the sentencing court. In re Criminal Procedure, Rule, No. 1, 151 So.2d 634 (Fla.1963); Roy v. Wainwright, 151 So.2d 825, 828 (Fla.1963) (explaining that rule 1 “was promulgated to establish an effective procedure in the courts best equipped to adjudicate the rights of those originally tried in those courts”) (emphasis supplied). The supreme court intended rule 1 (now rule 3.850) to largely supplant the need for habeas corpus and provide a simplified, orderly, and efficient procedure for raising postconviction challenges. Baker v. State, 878 So.2d 1236, 1240 (Fla.2004).

The Florida Supreme Court has repeatedly recognized that like other constitutional rights, the right to habeas relief is subject to reasonable restrictions. Id. at 1241 (quoting Haag v. State, 591 So.2d 614, 616 (Fla.1992)). In enacting a rule of procedure to govern postconviction challenges, the Florida Supreme Court “struck the delicate balance necessary to protect both the right to habeas corpus relief in Florida and the institutional needs of the state courts system.” Baker, 878 So.2d at 1241. To preserve this balance, since its inception the rule has provided that habeas corpus is not available if a defendant has or had an adequate remedy by postconviction motion. Id. at 1241; see Fla. R.Crim. P. 3.850(h).

Under rule 3.850, collateral challenges to a conviction or sentence must be brought in the court that imposed the conviction and sentence, which is the court best equipped to adjudicate those rights. Habeas corpus cannot be used to obtain a second appeal or to relitigate issues that could have been or were raised in a rule 3.850 motion filed in the sentencing court. Baker, 878 So.2d at 1241. The Florida Supreme Court has made clear that “with limited exceptions, habeas corpus relief is not available to obtain collateral postconviction...