Jefferson v. State, 95-4588
| Decision Date | 27 June 1996 |
| Docket Number | No. 95-4588,95-4588 |
| Citation | 677 So.2d 29 |
| Parties | 21 Fla. L. Weekly D1497, 21 Fla. L. Weekly D1662 Ronald JEFFERSON, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Ronald Jefferson, pro se.
No appearance for Appellee.
Ronald Jefferson (Jefferson) appeals from an order denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.800. He was sentenced for the offenses of possession of cocaine and carrying a concealed firearm. We affirm.
The record in this case does not contain a copy of the judgment and sentence, but consists solely of Jefferson's motion and the order of the trial court denying the motion. 1 We consider only the allegations contained in the motion in determining whether it is facially sufficient.
Jefferson's motion is rather cryptic, but we interpret it as alleging that he was originally sentenced to eighteen months in prison, which term was suspended with probation imposed in lieu thereof. He later violated his probation and was resentenced to thirty months 2 in prison. Jefferson argues that his sentence is illegal because he could not be lawfully sentenced to more than the original suspended sentence of eighteen months in prison.
We find it unnecessary to consider whether Jefferson has a viable claim pursuant to Poore v. State, 531 So.2d 161 (Fla.1988), because the sentence of thirty months does not exceed the maximum statutory penalty for the offenses of possession of cocaine and carrying a concealed firearm. Our supreme court recently addressed the issue and said:
[A]n 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, 1196 (Fla.1995).
We interpret Davis to mean that Jefferson's sentence does not qualify as an illegal sentence. We reach this conclusion because under the plain language of Davis, Jefferson's sentence would have had to exceed the maximum sentence provided by law for third-degree felonies in order to entitle him to relief. We therefore affirm the order of the trial court denying Jefferson's rule 3.800 motion.
We consider the issue in this case to be one of great public importance and therefore certify the following question to the supreme court:
WHERE A DEFENDANT IS SENTENCED TO A TRUE SPLIT SENTENCE, AS DEFINED IN POORE v. STATE, 531 So.2d 161 (Fla.1988), AND UPON VIOLATION OF PROBATION, RESENTENCED TO A PERIOD OF INCARCERATION WHICH EXCEEDS THE ORIGINAL SENTENCE IMPOSED, BUT DOES NOT EXCEED THE STATUTORY MAXIMUM FOR THAT OFFENSE, IS THE NEW SENTENCE "ILLEGAL" WITHIN THE MEANING OF DAVIS v. STATE, 661 So.2d 1193 (Fla.1995), FOR THE PURPOSES OF FLORIDA RULE OF CRIMINAL PROCEDURE 3.800(a)?
Jefferson asserted in his Florida Rule of Criminal Procedure 3.800(a) motion that in 1991 he was sentenced to a suspended prison term of eighteen months, and that he was placed on probation for the suspended period. He further claimed that upon revocation of his probation, the trial court imposed a thirty-month prison sentence. A simple review of the trial court file would reveal whether these allegations are accurate. If they are, Jefferson received a "true split sentence" in 1991, and upon revocation of probation the trial court was precluded by the double jeopardy provisions of the state and federal constitutions from sentencing Jefferson to more than eighteen months in prison. See Poore v. State, 531 So.2d 161 (Fla.1988).
The majority nevertheless concludes that it matters not that the trial court file might plainly reveal that Jefferson is imprisoned pursuant to a sentence which violates the organic law of our state and nation. Based upon what is said to be the "plain language" of Davis v. State, 661 So.2d 1193 (Fla.1995), the majority holds that, because the two-year rule 3.850 period has expired, all constitutional challenges to Jefferson's sentence have been lost, and he may only be heard to complain that his sentence exceeds the statutory maximum for the third degree felonies of which he stands convicted. I respectfully disagree with the majority because neither Davis, nor State v. Callaway, 658 So.2d 983 (Fla.1995), which cites Davis and was decided on the same day, compels or permits the result reached in this case.
In Davis, the supreme court held that Davis would not be permitted to rely upon the decision in Ree v. State, 565 So.2d 1329 (Fla.1990), to collaterally challenge his guidelines departure sentence because he had not raised the Ree argument in his direct appeal. In so holding, the court rejected Davis's assertion that his sentence was "illegal," and explained that a sentence imposed in violation of the guidelines does not amount to an "illegal sentence."
The majority in the present case seizes upon a portion of a single sentence within that explanation to conclude that a sentence must be in excess of the statutory maximum for crimes of the relevant degree in order to be "illegal." But the Davis language quoted by the majority, which refers to an illegal sentence as being "one that exceeds the maximum period set forth by law for a particular offense," does not refer exclusively to statutes which set forth maximum sentences. And the majority ignores the fact that elsewhere in Davis the supreme court describes an illegal sentence as one which merely "exceeds the maximum allowed by law" or which is not "within the maximum allowed by law." This language does not limit the term "illegal sentence" to a sentence in excess of a statutory maximum. Depending upon the particular circumstances involved, the "law" might "set forth" numerous limitations upon the maximum period for which a particular defendant might be sentenced, and a statutory maximum is only one such limitation. Jefferson has alleged a limitation that fully satisfies even the Davis language upon which the majority relies. The "law" upon which Jefferson relies is "set forth" by the double jeopardy provisions of the state and federal constitutions and by Poore, which establish a maximum limit for sentences following revocation of probation in conjunction with a true split sentence.
Davis and Callaway, and Judge v. State, 596 So.2d 73 (Fla.2d DCA 1991), which was discussed in Callaway, indicate that an "illegal...
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...review Mack v. State, 766 So.2d 1254 (Fla. 5th DCA 2000), which expressly and directly conflicts with the opinion in Jefferson v. State, 677 So.2d 29 (Fla. 1st DCA 1996). We have jurisdiction. See art. V, § 3(b)(3), Fla. In 1990 Mack pled guilty to a number of counts of burglary and grand t......
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