Callaway v. State

• Decision Date: 14 September 1994
• Docket Number: No. 94-01645,94-01645
• Citation: 642 So.2d 636
• Parties: 19 Fla. L. Weekly D1976 Albert CALLAWAY, Jr., Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

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.

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 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 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 involve a complex factual question, the postconviction determination of the number of criminal episodes considered at any prior sentencing hearing will usually, if not always, require an evidentiary determination. Thus, a sworn motion filed pursuant to rule 3.850 is the appropriate method for resolution of this issue.

For many prisoners, including Mr. Callaway, the problem with seeking such postconviction relief under rule 3.850 is that the normal two-year limitation, if applicable, would bar the motions. Nevertheless, a two-year window following Hale is available if this new rule is retroactive under Witt v. State, 387 So.2d 922 (Fla.1980).

In Witt, the court held that a change of law would not be considered under rule 3.850 unless: (1) it emanated from the United States Supreme Court or the Florida Supreme Court; (2) it was constitutional in nature; and (3) it constituted a development of fundamental significance. Our supreme court's decision in Hale clearly passes the first prong of this three-prong test.

The second prong requires that the new rule be constitutional in nature. This requirement seems to overlap with the third requirement that the new rule be a development of fundamental significance. We rely to some extent upon the reasoning for the third prong in deciding that the new rule in Hale is constitutional in nature. Although the supreme court did not declare any law unconstitutional in Hale, it invalidated consecutive habitual offender sentences arising from the same criminal episode because no statute expressly authorized such punishment. The punishment clearly could not withstand due process analysis in the absence of an empowering statute. Thus, while the decision is not directly a new rule of constitutional law, it is based primarily upon constitutional analysis, as compared to common law analysis or statutory interpretation. It is "constitutional in nature."

Turning to the third prong, a change in the law is of "fundamental significance" if it fits within one of two "broad categories." 387 So.2d at 929. The rule in Hale must be either (1) a change that places the power to impose a certain penalty beyond the authority of the state, or (2) it must pass another three-prong test described in Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), and Linkletter v. Walker, 381 U.S. 618, 85 S.Ct. 1731, 14 L.Ed.2d 601 (1965). This third prong of the Witt test clearly restricts the retroactive application of new rules to changes that are significant ...