Hall v. State

• Decision Date: 05 August 1987
• Docket Number: No. BQ-408,BQ-408
• Parties: 12 Fla. L. Weekly 1901 Frederick Charles HALL, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1038

511 So.2d 1038

12 Fla. L. Weekly 1901

Frederick Charles HALL, Appellant, v. STATE of Florida, Appellee.

No. BQ-408.

District Court of Appeal of Florida First District.

Aug. 5, 1987.

Frederick Hall, pro se.

No appearance for appellee.

ZEHMER, Judge.

Frederick Charles Hall appeals the trial court's denial of his motion for post-conviction relief pursuant to rule 3.850, Florida Rules of Criminal Procedure. Finding that Hall's motion has merit, we reverse.

Hall was convicted in 1985 under section 790.23, Florida Statutes (1983), of possession of a firearm by a convicted felon. That offense is a second degree felony punishable by a term of imprisonment not exceeding fifteen years. Because Hall had been convicted in 1982 of aggravated assault, a felony, and had a history of juvenile offenses, the trial court adjudged him to be a habitual offender under section 775.084, Florida Statutes (1983), and sentenced him to twenty years in prison. ¹ This sentence, according to Hall's motion, represented a substantial departure from the guidelines' recommended sentence of any nonstate prison sanction. Hall appealed, and we affirmed the conviction. Hall v. State, 492 So.2d 692 (Fla. 1st DCA 1986). We also approved Hall's habitual-offender status as a valid reason for departure, citing Shull v. State, 481 So.2d 1294 (Fla. 1st DCA 1986); Payne v. State, 480 So.2d 202 (Fla. 1st DCA 1985) (on motion for rehearing), reversed, 498 So.2d 413 (Fla.1986); and Whitehead v. State, 467 So.2d 779 (Fla. 1st DCA 1985), reversed, 498 So.2d 863 (Fla.1986), but reversed and remanded for resentencing because the trial court had not reduced the reasons for departure to writing, citing Shull and Cuthbert v. State, 459 So.2d 1098, 1100 n. 3 (Fla. 1st DCA 1984). At Hall's resentencing on July 21, 1986, the trial court reimposed the same twenty-year sentence, and stated in writing that the sole reason for departure was Hall's status as a habitual offender. At that time, this reason was in accord with our decision in Whitehead v. State, 467 So.2d 779, and numerous other district court of appeal decisions. Hall did not appeal this reimposed sentence within thirty days. ²

On October 30, 1986, approximately three months after resentencing, Hall filed the instant motion for post-conviction relief. He alleges that his twenty-year sentence was grossly in excess of the guidelines and clearly unreasonable and, further, that his status as a habitual offender had not been properly adjudicated in a separate proceeding. On that same date, the supreme court released its decision in Whitehead v. State, 498 So.2d 863 (Fla.1987), reversing this court's decision and holding that finding a defendant to be a habitual offender is not a legally sufficient reason for departure from the sentencing guidelines' recommended sentence. ³ Obviously Hall's motion could not refer to that decision, but it was clearly the applicable law at the time the trial court summarily denied the motion on November 18, 1986. ⁴ If the supreme court decision in Whitehead is applicable to this case, Hall's departure sentence of twenty years is patently invalid. The question before us, then, is whether Hall's motion for post-conviction relief should be granted on the basis of that decision, which overturned the entire legal foundation of Hall's departure sentence.

In Witt v. State, 387 So.2d 922 (Fla.), cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980), the supreme court held that, to be cognizable under rule 3.850, a change in the decisional law must emanate from either the United States Supreme Court or the Florida Supreme Court and must be a "fundamental and constitutional" change. 387 So.2d at 929. The court noted that most major constitutional law changes fall into two categories: first, changes of law which place beyond the authority of the state the power to regulate certain conduct or to impose certain penalties; ⁵ second, those changes which meet the three-prong test for retroactivity enunciated 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). ⁶ The court then stated:

In contrast to these jurisprudential upheavals are evolutionary refinements in the criminal law, affording new or different standards for the admissibility of evidence, for procedural fairness, for proportionality review of capital cases, and for other like matters. Emergent rights in these categories, or the retraction of former rights of this genre, do not compel an abridgement of the finality of judgments. To allow them that impact would, we are convinced, destroy the stability of the law, render punishments uncertain and therefore ineffectual, and burden the judicial machinery of our state, fiscally and intellectually, beyond any tolerable limit.

387 So.2d at 929-30.

Relying on the Witt decision, we previously held, rightly or wrongly, that a supreme court decision holding invalid a reason for departure previously recognized as valid under lower appellate decisions is not a fundamental change of law warranting rule 3.850 post-conviction relief for those persons whose sentences have become final. Kiser v. State, 505 So.2d 9 (Fla. 1st DCA 1987); Ardley v. State, 491 So.2d 1259 (Fla. 1st DCA 1986). If we appplied the rule of these cases in the present case, we would be required to hold that Hall is precluded from collaterally attacking the validity of his departure sentence based on the supreme court's decision in Whitehead.

These decisions, however, were handed down before the supreme court's recent decision in Bass v. State12 F.L.W. 289 (Fla. June 11, 1987). As Justice Ehrlich observed in his dissent, the majority opinion in Bass appears to turn the Witt decision on its head, at least in respect to the construction of statutes governing the length of sentences that may be imposed under statutory law. Bass involved the stacking of minimum mandatory three-year terms. After Bass's sentence became final, the supreme court held such stacking to be illegal in Palmer v. State, 438 So.2d 1 (Fla.1983). The supreme court held that Bass could challenge his sentence by way of a rule 3.850 motion even though Palmer was released after Bass's sentence became final. The court reasoned that it need not decide whether Palmer should retroactively apply to invalidate Bass's sentence because the Palmer decision did not change the substantive law of sentencing but merely interpreted preexisting statutory law and "corrected mistakes in its implementation." 12 F.L.W. at 289. The court then continued:

Because we believe that Palmer does not represent any change in law, we need not examine the issue of whether violation of that decision is fundamental error. Nor do we here consider whether Palmer should retroactively apply. Our determination that Palmer did not change the law of sentencing in any substantive way necessarily precludes examination of those issues.

Furthermore, because the trial court's sentencing error was not pointed out by this Court until Palmer, we hold that petitioner's rule 3.850 motion is not precluded by his failure to raise the issue on direct appeal. If Bass's sentence was illegal from its inception, then it does not matter that courts and attorneys were not alerted to its illegality until Palmer. At the time of the original sentencing, neither he, nor his attorney, nor the trial court, were aware that the stacked sentence was illegal. The fact that courts and lawyers did not know what interpretation this Court would give to section 775.087 when it was enacted does not render Bass's sentence legal, but it does excuse his failure to raise the matter on direct appeal. Therefore Bass may now attack the legality of his sentence.

It would be inherently unjust to allow the imposition of an illegal sentence without providing a mechanism to attack that sentence, simply because courts were unaware of its illegality at the time of imposition of the sentence. Because the motion seeks to correct or "vacate a sentence which exceeds the limits provided by law," the motion "may be filed at any time." Fla.R.Crim. Procedure 3.850.

12 F.L.W. at 289.

We read the Bass opinion to mean that when the supreme court construes an existing statute governing the length of sentences that may be lawfully imposed and reaches a construction of the statute that is contrary to a construction theretofore announced in a district court of appeal decision, the supreme court's decision is not a change in the law but merely announces what the statutory law always has been. Thus, where the changed construction reveals that a sentence, apparently legal when imposed, is illegal under the new construction, such sentence may be collaterally attacked under rule 3.850. In effect, a lower appellate court decision construing a statute defining the sentence that can be lawfully imposed does not establish what the statute actually means and, in this sense, what the law actually is, but only what the law may be until actually approved or overruled by the supreme court. Once interpreted by the supreme court, the statute must be given that meaning from its inception, not only in cases currently on appeal, but also in those cases which have already become final after appeal to the district courts.

We have experienced some difficulty discerning the precise effect of the holding in Bass on the issue before us. The decision appears to be based exclusively on the legal principle that the court's construction of a statute gives it meaning from the inception of the statute (unless otherwise specified in the decision) ⁷ to the complete exclusion of the legal doctrines of law of the case and the correlative concept of finality of decisions. ⁸ Ordinarily, a decision which has become final based upon a certain construction of a statute may not thereafter be reopened and readjudicated because of a changed construction of that statute. ⁹...