Johnson v. State, 97-02999
| Decision Date | 20 August 1997 |
| Docket Number | No. 97-02999,97-02999 |
| Citation | 697 So.2d 1304 |
| Parties | 22 Fla. L. Weekly D1997 Zachary JOHNSON, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Zachary Johnson appeals the dismissal of his motion to correct illegal sentence. Although the trial court's reasoning was incorrect, we affirm because the motion states no basis for relief under Florida Rule of Criminal Procedure 3.800(a).
Following a jury trial in March 1997, Mr. Johnson was apparently convicted of burglary and dealing in stolen property. His attorney filed an appeal on his behalf on May 15, 1997. On June 5, 1997, Mr. Johnson filed both a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850 and a "motion to correct an illegal sentence." The trial court dismissed both motions on the ground that an appeal was pending in this court. In appellate case number 97-02998, we have affirmed the dismissal of the motion for postconviction relief. The motion to correct an illegal sentence, however, requires further consideration.
Effective January 1, 1997, Florida Rule of Criminal Procedure 3.800 and Florida Rule of Appellate Procedure 9.600 were amended. Rule 3.800 now permits a motion to correct a sentencing error under subsection (b) "within thirty days after rendition of sentence." Under subsection (a) of rule 3.800, a motion to correct an illegal sentence may be filed "at any time." Rule 9.600(d) was added to the appellate rules to give the lower tribunal jurisdiction to review motions filed pursuant to rule 3.800(a) while an appeal was pending. These amendments give the trial court the opportunity to correct its own sentencing errors while the case is pending on appeal, and effectively give the defendant the opportunity to preserve sentencing issues for appeal that were not preserved prior to the filing of the notice of appeal. 1 See Waldron v. State, 696 So.2d 1318 (Fla. 1st DCA 1997). Because Mr. Johnson's sentence was rendered after January 1, we assume that these new rules apply to his case.
Mr. Johnson's motion does not specify whether it was filed pursuant to subsection (a) or (b). Under subsection (b), it was untimely. Under subsection (a), it was a proper motion, and the trial court erred in dismissing it for lack of jurisdiction. Nevertheless, the motion does not contain any ground that would render the sentence illegal. We note, however, that the motion filed pursuant to rule 3.850 alleged that Mr. Johnson received an illegal 30-year sentence for a third-degree felony. If that allegation had been incorporated into Mr. Johnson's motion to correct an illegal sentence, we would have been required to reverse the dismissal of this motion. According...
To continue reading
Request your trial
-
Denson v. State, 97-00611
...the illegal sentence at any time during the pendency of this appeal in the trial court. See Fla. R.App. P. 9.600(d); Johnson v. State, 697 So.2d 1304 (Fla. 2d DCA 1997). 2 Even if the oral/written conflict does not result in an illegal sentence, Mr. Denson could still raise this issue post-......
-
Harriel v. State, 97-1866
...of sentencing or by motion to correct the sentence, pursuant to Florida Rule of Criminal Procedure 3.800(b). See Johnson v. State, 697 So.2d 1304, 1305 (Fla. 2d DCA 1997); § 924.051, Fla. Stat. (1997); Fla.R.App.P. 9.140(b)(2)(B)(iv), (d). No such motion was filed in this case. Thus, becaus......
-
Washington v. State, 98-4510.
...9.600(d) which became effective on January 1, 1997, and applies to all sentences imposed after that date. See Johnson v. State, 697 So.2d 1304 (Fla. 2d DCA 1997). Rule 9.600(d) specifically states that a trial court retains jurisdiction to consider claims filed under Rule 3.800(a) even when......
-
Carter v. State, No. 97-01726
...to consider motions filed pursuant to rule 3.800(a) while an appeal is pending. See Fla. R.App. P. 9.600(d); Johnson v. State, 697 So.2d 1304 (Fla. 2d DCA 1997). Accordingly, we remand Carter's postconviction motion to the trial court for Affirmed in part, reversed in part, and remanded. PA......