Jett v. State, 97-2697.

• Citation: 722 So.2d 211
• Decision Date: 05 October 1998
• Docket Number: No. 97-2697.,97-2697.
• Parties: Jack James JETT, Appellant, v. STATE of Florida, Appellee.
• Court: Court of Appeal of Florida (US)

722 So.2d 211

Jack James JETT, Appellant, v. STATE of Florida, Appellee.

No. 97-2697.

District Court of Appeal of Florida, First District.

October 5, 1998.

Appellant, pro se.

Robert A. Butterworth, Attorney General, and Trisha E. Meggs, Assistant Attorney General, Tallahassee, for Appellee.

ON MOTION FOR REHEARING

PER CURIAM.

Jack James Jett appeals from the summary denial of a motion for post conviction relief pursuant to Florida Rule of Criminal Procedure 3.850, alternatively styled as a petition for writ of habeas corpus. We affirm in part and reverse in part.

Jett was sentenced to concurrent terms of fifteen years incarceration on counts I and II in circuit court case no. 91-774 and case no. 91-681, following a finding that he had violated a condition of probation. One of the provisions of his probation was that it would terminate upon his payment of restitution. On October 1, 1993, he tested positive for cocaine. On October 4, 1993, he paid off his restitution. He was tested again in December, 1993, and again failed the test, whereupon a warrant was obtained for violation of probation.

Jett contends that count II had been dismissed pursuant to his original plea agreement, and that because he had completed serving his original sentence and probation for count I, he is now being held illegally. We find that the trial judge correctly determined that relief pursuant to rule 3.850 was time-barred, and that he recognized the sentence for count II was unlawful because that count had been dismissed. However, we disagree with his holding that Jett was not entitled to relief through habeas corpus because he was lawfully confined on count I.

No steps were taken to prosecute Jett for violation of probation until after his probation had terminated on October 4, 1993. It was then too late. State v. Hall, 641 So.2d 403 (Fla.1994). Consequently, Jett has been twice punished for the same offense. Being placed twice in jeopardy for the same offense is a fundamental constitutional flaw cognizable under Florida Rule of Criminal Procedure 3.800(a). Hopping v. State, 708 So.2d 263 (Fla.1998). The allegations of the pleading before the trial court were sufficient to state a basis for relief under rule 3.800(a). The error is apparent on the face of the record and requires no evidentiary hearing. Utilization of rule 3.800(a) is proper in this circumstance. See DeSantis v. State, 400 So.2d 525 (Fla. 5th DCA 1981).

We review the case as properly pled under rule 3.800(a), and REVERSE the decision of the trial court. Fla. R.App. P. 9.140(h). The case is REMANDED to the trial court with directions to vacate both of the sentences imposed in case no. 91-774 and the sentence imposed in case no. 91-681.

BARFIELD, C.J., and DAVIS, J., concur.

BENTON, J., concurs in the result with opinion.

BENTON, J., concurring in the result.

I share the majority's view that both sentences before us in Case No. 91-774 should be vacated. One sentence was imposed on Count I in Case No. 91-774 after service of the sentence originally pronounced on Count I had already been completed. The other sentence was imposed on Count II in Case No. 91-774 in the absence of plea, trial, and adjudication of guilt. The trial court lacked jurisdiction to impose either of these sentences. Both are illegal and both constitute fundamental error. Each sentence "patently fails to comport with statutory or constitutional limitations." State v. Mancino, 714 So.2d 429 (Fla.1998).

When the sentences Jack James Jett challenges were pronounced on April 26, 1994, he took no appeal. His offenses, convictions, sentencing, and resentencing all antedate enactment of section 924.051(5), Florida Statutes (Supp.1996). Cf. Singletary v. Van Meter, 708 So.2d 266 (Fla.1998). The Criminal Appeal Reform Act of 1996, chapter 96-248, section 1, at 953, Laws of Florida, as amended, does not, therefore, apply on the appeal Mr. Jett now brings from denial of his motion for collateral relief. See Larson v. State, 700 So.2d 388 (Fla. 1st DCA 1997). See also Sanders v. State, 698 So.2d 377, 378 (Fla. 1st DCA 1997) ("But section 924.051 does not preclude an appellate challenge to an unpreserved sentencing error that constitutes fundamental error.").

Citing Florida Rule of Criminal Procedure 3.850, Mr. Jett filed in circuit court a motion for post conviction relief styled alternatively as a petition for writ of habeas corpus. He alleged that the court which revoked his probation and ordered him back to prison in Cases Nos. 91-681 and 91-774 lacked jurisdiction to do so because his probation had terminated earlier. Resentenced in the wake of the putative revocation, he also alleged that one count on which he was sentenced had in fact been dismissed at the time of his original plea and sentencing, in keeping with a plea agreement approved by the trial court at that time.

More than two years and thirty days elapsed after the resentencing before he filed the motion, denial of which we now review. The trial court ruled that appellant's motion was untimely under Florida Rule of Criminal Procedure 3.850(b). See Gust v. State, 535 So.2d 642 (Fla. 1st DCA 1988). Treating the motion as a petition for writ of habeas corpus, the trial court decided that Mr. Jett had failed to plead adequately that he was currently being held illegally in prison. The motion is properly considered, however, as if filed under Florida Rule of Criminal Procedure 3.800, which authorizes correction of illegal sentences "at any time."

The court's work has been greatly facilitated by the able assistant attorney general's lucid exposition of the facts of record:

1. On April 25, 1991, the State charged appellant with dealing in stolen property in Bay County Circuit Court Case Number 91-0681, (R.3), and in Bay County Circuit Court Case Number 91-0774, the State also charged appellant with two counts of dealing in stolen property. (R.19). Pursuant to a plea agreement in Case Number 91-0774, appellant pled no contest to one count of dealing in stolen property and he agreed to make full restitution. (R.20). The State agreed to dismiss Count II. (R.20). Appellant also entered a nolo contendere plea to dealing in stolen property in Case 91-681.(R.5). On September 19, 1991, the trial court, in both cases, sentenced appellant to concurrent ten-years prison sentences followed by five years of probation. (R.5-10;23-26). The trial court stated that "[t]he ten year sentences will be followed by five years of probation for the sole purpose of making restitution, and if you pay off all of these debts in advance, then your probation will terminate. It will end early." (R.98).

Appellant was released early from prison. On October 1, 1993, appellant tested positive for cocaine which violated a condition of his probation. (R.95). It appears that appellant paid the balance of the restitution on October 4, 1993. (R.90,92). On October 6, 1993, appellant's probation officer sent a notice to the clerk of the court informing the clerk's office of the positive drug test. (R.96). However, the officer did not file a violation report. Appellant tested positive for cocaine a second time on December 1, 1993. (R.64). Appellant's probation officer filed an amended affidavit of violation of probation on January 7, 1994. (R.95). On April 28, 1994, the trial court revoked appellant's probation. (R.12-17, 28-36). The trial court sentenced appellant to prison for a term of fifteen years for the offense in Case 91-681. (R.12-17). The trial court imposed concurrent fifteen-year prison sentences for both Counts I and II of Case Number 91-774, and these sentences ran concurrently to appellant's sentence in Case Number 91-681. (R.28-36).

2. On January 31, 1997, appellant filed a motion for postconviction relief or alternatively a petition for writ of habeas corpus. (R.37-88). Appellant claimed that the trial court did not have jurisdiction to sentence him because his probation had terminated in that the trial court had stated that his probation would terminate upon payment of restitution. (R.43). Appellant also claimed that the trial court could not sentence him for Count II of Case Number 91-774 because that count had been dismissed. (R.43).

3. The circuit court treated appellant's Rule 3.850 motion as a petition for writ of habeas corpus and held that:

3. First, the Defendant alleges that the court lacked jurisdiction to sentence him for violating probation because his probation was to be terminated upon payment of restitution. However, the court record indicates that the Defendant violated probation on October 1, 1993, by failing a drug screening test, and subsequently paid the restitution amount he owed on October 4, 1993. (See attached affidavit and payment ledger). Thus, the Defendant was in violation status when he made restitution. Because the Defendant violated probation before he made restitution, the court retained jurisdiction to resentence the Defendant in case numbers 91-0774 and 91-0681. Furthermore, the Defendant did not petition the court to terminate his probation after he made restitution and also failed to raise the issue as a defense when he was resentenced for violating probation.

4. The second ground alleges that count II in case number 91-0774, was dismissed pursuant to a plea agreement at the time of original sentencing. Although the Judgment and Sentence of April, 26, 1994, indicates the defendant was resentenced on count I and count II, an earlier dismissal of count II would not entitle the Defendant to habeas corpus relief. A habeas corpus petition which fails to allege that the relief requested would entitle the petitioner to immediate relief should not be granted. Brown v. Wainwright, 498 So.2d 679 (Fla. 1st DCA 1986). The 1994, sentence reflects that the Defendant was sentenced to both counts for fifteen (15) years to run concurrently. Therefore, even if count II had been dismissed the Defendant would not be entitled to immediate

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