Callaway v. State, No. 94-01645

CourtCourt of Appeal of Florida (US)
Writing for the CourtALTENBERND; Second, the old rule was relied upon by many, if not most; PARKER, A.C.J., and LAZZARA
Citation642 So.2d 636
Parties19 Fla. L. Weekly D1976 Albert CALLAWAY, Jr., Appellant, v. STATE of Florida, Appellee.
Docket NumberNo. 94-01645
Decision Date14 September 1994

Page 636

642 So.2d 636
19 Fla. L. Weekly D1976
Albert CALLAWAY, Jr., Appellant,
v.
STATE of Florida, Appellee.
No. 94-01645.
District Court of Appeal of Florida,
Second District.
Sept. 14, 1994.

Page 638

ALTENBERND, Judge.

Albert Callaway appeals the summary denial of his motion seeking postconviction relief. He claims that his consecutive habitual felony offender sentences are impermissible under the rule announced in Hale v. State, 630 So.2d 521 (Fla.1993). We conclude that Hale applies to both habitual violent felony and habitual felony sentences. Even though Mr. Callaway's sentences became final more than two years ago, he is entitled to challenge his consecutive habitual felony offender sentences during the two-year period following the issuance of Hale. Accordingly, we reverse and remand for further proceedings.

I. THE RULE IN HALE APPLIES TO BOTH TYPES OF HABITUAL FELONY OFFENDER SENTENCES

On January 27, 1994, Mr. Callaway filed a motion to correct sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). In the motion, he explains that he had been sentenced on July 5, 1990, as a habitual offender to two consecutive 10-year sentences for his involvement in one criminal episode. This court affirmed those sentences in June 1991. His motion points out that the supreme court in Hale recently held there is no statutory authority for consecutive habitual offender sentences for offenses committed during a single criminal episode. He maintains that he is entitled to concurrent sentences, as a matter of law, because his sentences arose from a single criminal episode.

The trial court denied relief without attaching any documents to its order. It concluded that Mr. Callaway should have raised this sentencing issue under Florida Rule of Criminal Procedure 3.850 because the matter can be resolved only after a factual, rather than a legal, determination. Accordingly, the trial court treated the motion as if it were filed under rule 3.850, but denied it as successive because an earlier motion under rule 3.850 had been filed in July 1992 and denied. If the trial court is correct, the earlier denial was not appealed to this court, and we have no documentary support for its ruling. Moreover, the earlier motion was denied more than a year before the supreme court's decision in Hale. This is the first time that Mr. Callaway has had an opportunity to raise this issue since Hale was decided. 1

In addition to denying the motion as successive, the trial court also reasoned that Hale only applies to habitual violent felony offenders and not to all habitual felony offenders. It is true that Hale involved a habitual violent felony sentence. On the other hand, the court's reasoning appears to apply equally to both habitual and habitual violent felony sentencing:

We find nothing in the language of the habitual offender statute which suggests that the legislature also intended that, once the sentences from multiple crimes committed during a single criminal episode have been enhanced through the habitual offender statutes, the total penalty should then be further increased by ordering that the sentences run consecutively.

630 So.2d at 524. There is nothing in the statute that expressly permits either variety of habitual offender sentence to be imposed consecutively. While not fully explained in

Page 639

the opinion, this court has recently applied Hale in a direct appeal involving a habitual offender sentence, as compared to a habitual violent offender sentence. See Dietrich v. State, 635 So.2d 148 (Fla. 2d DCA 1994). Two other districts appear to have applied Hale to sentences that were not habitual violent offender sentences. See Goshay v. State, 19 Fla.L.Weekly D1715, 1994 WL 419574 (Fla. 1st DCA Aug. 12, 1994); Sirmans v. State, 638 So.2d 576 (Fla. 1st DCA 1994); Anderson v. State, 637 So.2d 971 (Fla. 5th DCA 1994). In accordance with the above reasoning and authorities, we hold the trial court erred in failing to apply Hale to a habitual felony offender sentence.

II. THE NEW RULE IN HALE APPLIES RETROACTIVELY UNDER WITT

Because the trial courts in this district will undoubtedly receive many postconviction motions based on Hale, we discuss whether such motions may be filed unsworn under rule 3.800(a) or whether they must be filed pursuant to rule 3.850. There is analogous precedent that would support or counter almost any resolution of this issue. For the reasons stated below, we conclude that rule 3.850 applies to any conviction preceding Hale and that a two-year window exists after Hale in which to address this issue. See Adams v. State, 543 So.2d 1244 (Fla.1989); Rodriguez v. State, 637 So.2d 934 (Fla. 2d DCA 1994).

Rule 3.800(a) allows an unlimited period in which to address "illegal" sentences. Thus, it is generally reserved for issues that can be resolved as a matter of law and without an evidentiary determination. 2 Judge v. State, 596 So.2d 73 (Fla. 2d DCA 1991), review denied, 613 So.2d 5 (Fla.1992). Nevertheless, this district has, in analogous cases, permitted prisoners to present factual challenges to consecutive minimum mandatory sentences under rule 3.800(a) at any time. See Young v. State, 638 So.2d 532 (Fla. 2d DCA 1994); Brown v. State, 633 So.2d 112 (Fla. 2d DCA 1994); Poiteer v. State, 627 So.2d 526 (Fla. 2d DCA 1993). Other districts have taken different approaches. See Young v. State, 616 So.2d 1133 (Fla. 3d DCA 1993); Nowlin v. State, 639 So.2d 1050 (Fla. 1st DCA 1994).

As a general rule, a postconviction issue that requires an evidentiary hearing must be resolved under rule 3.850. See Judge, 596 So.2d 73. Whether a prisoner's consecutive sentences arise from a single criminal episode is not a pure question of law. Resolution of this issue depends upon factual evidence involving the times, places, and circumstances of the offenses. See, e.g., Blount v. State, 641 So.2d 447 (Fla. 2d DCA 1994) (theft and battery on law enforcement officer are one episode); Willis v. State, 640 So.2d 220 (Fla. 2d DCA 1994) (drug paraphernalia discovered during arrest for robbery is separate from robbery episode); Hoise v. State, 638 So.2d 622 (Fla. 1st DCA 1994) (possession of firearm and assault with that firearm are part of single episode); Parker v. State, 633 So.2d 72 (Fla. 1st DCA 1994) (crimes inside and outside a house are two episodes); Scott v. State, 627 So.2d 72 (Fla. 5th DCA 1993) (offenses arising from attempted prison escape deemed one episode).

If a prisoner seeking postconviction relief pleaded to the charges, the recorded plea colloquy may not address whether the offenses occurred in one or more episodes. Additionally, those circumstances may not be apparent on the face of the information. It is also unlikely that the documents in the remainder of the prisoner's court file will, as a matter of law, determine whether the offenses arose from a single episode. Cf. Parker, 633 So.2d 72 (relying on arrest report in record on appeal to determine these issues without evidentiary hearing).

If a prisoner seeking postconviction relief from consecutive sentences was convicted by a jury and has already lost his appeal, the court files available after conviction may contain a transcript of the trial, but even that

Page 640

evidence may not resolve whether all of the offenses were committed in a single episode. Before the decision in Hale, this was not a factual issue that a prosecutor would have emphasized.

Although the issue may not always...

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40 practice notes
  • Bunkley v. State, No. SC01-297.
    • United States
    • United States State Supreme Court of Florida
    • November 21, 2002
    ...Second District had done. Therefore, L.B. had strong due process implications, making it constitutional in nature. Cf. Callaway v. State, 642 So.2d 636, 640 (Fla. 2d DCA 1994) (decision is "constitutional in nature" if based primarily upon constitutional analysis), approved, 658 So.2d 983 A......
  • Dixon v. State, No. 91,370
    • United States
    • United States State Supreme Court of Florida
    • February 4, 1999
    ...between similarly situated prisoners. As expressed by both Judge Altenbernd writing for the Second District in Callaway v. State, 642 So.2d 636, 641 (Fla. 2d DCA 1994), approved, 658 So.2d 983 (Fla.1995), and by Justice Grimes writing for this Court in Callaway, 658 So.2d at 987, the failur......
  • House v. State, No. 97-1024
    • United States
    • Court of Appeal of Florida (US)
    • July 8, 1997
    ...it only argues that King should not be applied retroactively. 2 We agree with Judge Altenbernd's observation in Callaway v. State, 642 So.2d 636, 641 n. 4 (Fla. 2d DCA 1994), approved, 658 So.2d 983 (Fla.1995), that because an illegal sentence can be challenged under rule 3.800 at any time,......
  • Hastings v. Krischer, No. 4D02-2426.
    • United States
    • Court of Appeal of Florida (US)
    • January 2, 2003
    ...1995, Petitioner filed another rule 3.850 motion, arguing that the consecutive sentences were illegal under Hale and Callaway v. State, 642 So.2d 636 (Fla. 2d DCA 1994), approved, 658 So.2d 983 (Fla. 1995), which the trial court apparently denied as successive. This court reversed and reman......
  • Request a trial to view additional results
40 cases
  • Bunkley v. State, No. SC01-297.
    • United States
    • United States State Supreme Court of Florida
    • November 21, 2002
    ...Second District had done. Therefore, L.B. had strong due process implications, making it constitutional in nature. Cf. Callaway v. State, 642 So.2d 636, 640 (Fla. 2d DCA 1994) (decision is "constitutional in nature" if based primarily upon constitutional analysis), approved, 658 So.2d 983 A......
  • Dixon v. State, No. 91,370
    • United States
    • United States State Supreme Court of Florida
    • February 4, 1999
    ...between similarly situated prisoners. As expressed by both Judge Altenbernd writing for the Second District in Callaway v. State, 642 So.2d 636, 641 (Fla. 2d DCA 1994), approved, 658 So.2d 983 (Fla.1995), and by Justice Grimes writing for this Court in Callaway, 658 So.2d at 987, the failur......
  • House v. State, No. 97-1024
    • United States
    • Court of Appeal of Florida (US)
    • July 8, 1997
    ...it only argues that King should not be applied retroactively. 2 We agree with Judge Altenbernd's observation in Callaway v. State, 642 So.2d 636, 641 n. 4 (Fla. 2d DCA 1994), approved, 658 So.2d 983 (Fla.1995), that because an illegal sentence can be challenged under rule 3.800 at any time,......
  • Hastings v. Krischer, No. 4D02-2426.
    • United States
    • Court of Appeal of Florida (US)
    • January 2, 2003
    ...1995, Petitioner filed another rule 3.850 motion, arguing that the consecutive sentences were illegal under Hale and Callaway v. State, 642 So.2d 636 (Fla. 2d DCA 1994), approved, 658 So.2d 983 (Fla. 1995), which the trial court apparently denied as successive. This court reversed and reman......
  • Request a trial to view additional results

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