Hopping v. State
| Decision Date | 19 February 1998 |
| Docket Number | No. 89515,89515 |
| Citation | 708 So.2d 263 |
| Parties | 23 Fla. L. Weekly S95 Darin S. HOPPING, Petitioner, v. STATE of Florida, Respondent. |
| Court | Florida Supreme Court |
Darin S. Hopping, Bonifay, Petitioner, pro se.
Robert A. Butterworth, Attorney General; James W. Rogers, Bureau Chief, Criminal Appeals; and Sonya Roebuck Horbelt, Assistant Attorney General, Tallahassee, for Respondent.
We have for review a decision addressing the following question certified to be of great public importance:
WHETHER A SENTENCE WHICH VIOLATES DOUBLE JEOPARDY PRINCIPLES ACCORDING TO TROUPE v. ROWE, 283 So.2d 857(Fla.1973), IS AN ILLEGAL SENTENCE COGNIZABLE UNDER RULE3.800(a), FLORIDA RULES OF CRIMINAL PROCEDURE?
Hopping v. State, 674 So.2d 905, 906(Fla. 1st DCA1996).We have jurisdiction.Art. V, § 3(b)(4), Fla. Const.We answer in the affirmative and quash Hopping.
Darin Hopping pled guilty to a third-degree felony and was sentenced to a term of thirty months' incarceration to be followed by eighteen months' probation.His probation was revoked in November 1991, and he was resentenced to thirty-six months' incarceration with thirty months and two days' credit for time served.Hopping mistakenly thought that his new sentence equaled sixty-six months, 1 thereby exceeding the sixty-month maximum for third-degree felonies.2He requested a sentence correction by filing a motion under Florida Rule of Criminal Procedure 3.800(a), which states:
(a) Correction.A court may at any time correct an illegal sentence imposed by it or an incorrect calculation made by it in a sentencing guideline scoresheet.
The court responded with an order that had the practical import of doubling Hopping's original sentence:
ORDER CORRECTING AND MODIFYING JUDGMENT AND SENTENCE
This cause came on to be heard upon the Motion For Correction Of Sentence, filed by the Defendant, on or about January 28, 1992, requesting that his sentence be reduced to a maximum of five years with credit for time already served.The Court file reflects that a sentence was imposed upon the Defendant for a third-degree felony, the maximum term for which is five years.Accordingly, it is ORDERED AND ADJUDGED that the Judgment and Sentence entered in this cause on or about November 21, 1991, is hereby corrected and modified as follows:
1.The sentence imposed originally is vacated and in lieu thereof a sentence of sixty (60) months is imposed.
Hopping filed a second rule 3.800 motion, seeking to correct the doubling, which was denied.The First District Court of Appeal affirmed, but certified the foregoing question regarding the availability of a rule 3.800 motion in the present context:
Citing the narrow definition of an illegal sentence in Davis v. State, 661 So.2d 1193(Fla.1995)(), the State explained in its response that while the resentencing violated double jeopardy,[ 3] it did not result in an illegal sentence cognizable under rule 3.800.The state further asserted that appellant's remedies were either a direct appeal of the 1992 order which resulted in resentencing, or a timely 3.850 motion.Our records indicate that appellant's direct appeal following the 1992 resentencing was dismissed, and the two year bar for filing a 3.850 motion now applies.We affirm based on Davis, but because of the nature of the issue, certify a question of great public importance.
Hopping argues that because the trial court can determine as a matter of law that his sentence has been unconstitutionally enhanced in violation of the double jeopardy clause, the matter is cognizable under rule 3.800.We agree.
In Davis v. State, 661 So.2d 1193(Fla.1995), we stated that
[A]n illegal sentence is one that exceeds the maximum period set forth by law for a particular offense without regard to the guidelines.
Id. at 1196.We reaffirmed Davis in State v. Callaway, 658 So.2d 983(Fla.1995), and explained:
[A]n illegal sentence is one that exceeds the maximum period set forth by law for a particular offense without regard to the guidelines.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.
Callaway, 658 So.2d at 988(citations omitted)(emphasis added).In the instant case, it can be determined "as a matter of law without an evidentiary [hearing]" that Hopping's sentence was increased upon resentencing in violation of the double jeopardy clause.Thus, as Judge Benton concisely...
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Rogers v. State
...is limited to those sentencing issues that can be resolved as a matter of law without an evidentiary determination." Hopping v. State , 708 So. 2d 263, 265 (Fla. 1998) (internal quotation, citation, and emphasis omitted). In turn, before deciding on a corrected sentence, the postconviction ......
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Vanderblomen v. State
...651 So.2d 84 (Fla.1994), cert. denied, 516 U.S. 850, 116 S.Ct. 146, 133 L.Ed.2d 91 (1995).4 We note that the Court in Hopping v. State, 708 So.2d 263, 264 (Fla.1998), also recently held that "where it can be determined without an evidentiary hearing that a sentence has been unconstitutional......
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Carter v. State
...of a sentence that had been unconstitutionally lengthened in violation of the Double Jeopardy Clause. Thus, in Hopping v. State, 708 So.2d 263, 265 (Fla. 1998), we concluded that a sentence that was increased upon resentencing in violation of the Double Jeopardy Clause constituted an illega......