Flores v. State, 99-911.

• Decision Date: 25 August 1999
• Docket Number: No. 99-911.,99-911.
• Parties: Castro Jesus FLORES, Appellant, v. The STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

745 So.2d 977

Castro Jesus FLORES, Appellant, v. The STATE of Florida, Appellee.

No. 99-911.

District Court of Appeal of Florida, Third District.

August 25, 1999.

Castro Jesus Flores, in proper person.

Robert A. Butterworth, Attorney General, and Simone P. Firley (Ft.Lauderdale), Assistant Attorney General, for appellee.

Before NESBITT, JORGENSON, and SHEVIN, JJ.

NESBITT, J.

In December 1979, Castro Jesus Flores was convicted of robbery; aggravated assault (two counts); and unlawful possession of a firearm while engaged in a criminal offense. In January 1980, Flores was sentenced to Life, 3 years minimum mandatory, on the robbery conviction, and to five years (3 years minimum) on each of the aggravated assault convictions, each of the sentences to run consecutively. Entry of sentence on the unlawful possession conviction was suspended. Thus, the three crimes' sentences were consecutive, which is permissible. The three minimum mandatory sentences associated with these three crimes (3 years on each) were also consecutive. Flores argues this was impermissible and entitles him to 3.800 relief.

While addressing the issue of consecutive habitual felony offender sentences for multiple offenses arising out of a single criminal episode, the Supreme Court's statements in State v. Callaway, 658 So.2d 983 (Fla.1995), are directly applicable to the issue at hand. The Supreme Court agreed with the Second District's decision, Callaway v. State, 642 So.2d 636 (Fla. 2d DCA 1994), that resolution of the issue would require an evidentiary determination and thus should be dealt with under rule 3.850 which specifically provides for an evidentiary hearing. Fla.R.Crim.P. 3.850(d). As the court in Callaway, 658 So.2d 983, 987-88 concluded:

In Judge v. State, 596 So.2d 73 (Fla. 2d DCA 1991) review denied, 613 So.2d 5 (Fla.1992), the court recognized that there are three different types of sentencing errors: (1) an "erroneous sentence" which is correctable on direct appeal; (2) an "unlawful sentence" which is correctable only after an evidentiary hearing under rule 3.850; and (3) an "illegal sentence" in which the error must be corrected as a matter of law in a rule 3.800 proceeding. Id. at 76, 77 & n. 1. We recently explained that an illegal sentence is one that exceeds the maximum period set forth by law for a particular offense without regard to the guidelines. Davis v. State, 661 So.2d 1193 (Fla. 1995). A rule 3.800 motion can be filed at any time, even decades after a sentence has been imposed, and as such, its subject matter is limited to those sentencing issues that can be resolved as a matter of law without an evidentiary determination.

Whether a Hale sentencing error has occurred will require a determination of whether the offenses for which a defendant has been sentenced arose out of a single criminal episode. We agree with the district court that this issue is not a pure question of law. As the district court recognized, "resolution of this issue depends upon factual evidence involving the times, places, and circumstances of the offense," and often cannot be determined from the face of the record. Callaway, 642 So.2d at 639. In the case at bar, for example, the district court noted that "our records suggest that the two convictions may have arisen out of a single criminal episode at Creasy's Lawn and Tractor Equipment on January 10, 1990, but we have no ability to make a factual determination on the issue." Id. at 638 n. 1. Resolution of the issue will require an evidentiary determination and thus should be dealt with under rule 3.850 which specifically provides for an evidentiary hearing. Fla.R.Crim.P. 3.850(d).

The point is that the error complained of sub judice cannot be considered without an evidentiary hearing and this makes it a claim not cognizable by a 3.800 motion.

Palmer v. State, 438 So.2d 1 (Fla. 1983)(and its progeny) clearly prohibits consecutive minimum mandatory sentences for crimes occurring as part of a single criminal enterprise. See Daniels v. State, 595 So.2d 952 (Fla.1992)

. Furthermore case law uniformly establishes that the number of victims is not determinative of whether consecutive minimum mandatory sentences can stand. See Marshall v. Dugger, 526 So.2d 143 (Fla. 3d DCA 1988)(concluding where defendant robbed a Winn-Dixie store, holding a gun on several employees in order to effectuate the robbery, Palmer controlled, and the stacking of the minimum mandatory sentences was an illegal sentence). See also Richardson v. State, 500 So.2d 637 (Fla. 1st DCA 1986)(concluding that where defendant was convicted of four counts of aggravated assault and one count of possession of a firearm by a convicted felon, all growing out of a single "stickup," Palmer could be applied retroactively to defendant's sentences, and that the sentences could be attacked by a 3.850 motion, remanding for correction of the sentences to reflect that the minimum mandatory sentences be served concurrently).

However, temporal proximity alone is not determinative of whether consecutive minimum mandatory sentences should be considered illegal. In State v. Thomas, 487 So.2d 1043 (Fla.1986), defendant shot a woman four times in the bedroom of her trailer. While he reloaded his weapon, she managed to get outside to her yard. Defendant followed and shot her again. He also shot at her son, who had come to his mother's aid. He then shot the woman two more times. He was charged with attempted murder of the woman and aggravated assault on the son. The Supreme Court held that these facts showed that...