Judge v. State

Decision Date06 September 1991
Docket NumberNo. 91-02215,91-02215
Citation596 So.2d 73
PartiesGilbert JUDGE, Appellant, v. STATE of Florida, Appellee. 596 So.2d 73, 16 Fla. L. Week. D2337
CourtFlorida District Court of Appeals

PER CURIAM.

Gilbert Judge appeals the summary denial of his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800. We reverse.

Appellant alleged in his motion that he did not receive the state's written notice of enhancement and that he did not know in advance of sentencing that the state intended to seek an enhanced sentence pursuant to section 775.084, Florida Statutes (1989). The trial court summarily denied his motion, finding that appellant was aware of the possibility of enhancement by virtue of his plea agreement. The court further found that the issue of lack of notice of enhancement could not be raised in a motion to correct an illegal sentence. The trial court did not attach the plea agreement or the transcripts of the plea and sentencing hearings to its order.

In Grubbs v. State, 412 So.2d 27 (Fla. 2d DCA 1982), and in Ivey v. State, 500 So.2d 730 (Fla. 2d DCA 1987), this court ruled that similar allegations could be raised by a motion for postconviction relief. Because the allegations, if true, would entitle appellant to relief from an illegal sentence, the allegations are also the proper subject of a motion to correct an illegal sentence filed pursuant to rule 3.800(a).

Accordingly, we reverse the trial court's denial of appellant's motion and remand the case. On remand, if the files and records of the case conclusively show that appellant is entitled to no relief, the court shall attach those portions of the record to its order. If the court should again deny appellant's motion, he has thirty days in which to appeal.

Reversed and remanded.

RYDER, A.C.J., and DANAHY, J., concur.

ALTENBERND, J., concurs specially.

ALTENBERND, Judge, concurring.

I concur because this case is controlled by Grubbs v. State, 412 So.2d 27 (Fla. 2d DCA 1982), and Ivey v. State, 500 So.2d 730 (Fla. 2d DCA 1987). In the absence of this precedent, I would not regard this sentence as illegal. Mr. Judge pleaded guilty to drug charges in May 1989, and was sentenced to fifteen years' incarceration as a Mr. Judge admits that the trial court record contains a notice of intent, filed on June 20, 1989, to impose a sentence under the habitual offender statute. He further admits that his attorney received a copy of this notice. He claims that he did not personally receive a copy of this notice and that he was unprepared to challenge the details of his prior record at the sentencing hearing.

habitual offender on July 26, 1989. The sentence was appealed to this court, and we affirmed without written opinion. Judge v. State, 569 So.2d 449 (Fla. 2d DCA 1990). Our records confirm that the direct appeal unsuccessfully challenged the sufficiency of the habitual offender findings.

The length and the conditions of Mr. Judge's sentence are not illegal under section 775.084, Florida Statutes (1989). The sufficiency of the findings to support this sentence has been affirmed on direct appeal. Thus, the defendant's motion to correct an illegal sentence has potential merit only if a habitual offender sentence is illegal in the absence of proof in the written record that the defendant was timely served with written notice prior to the imposition of sentence. I do not believe that such an omission in the record renders the sentence illegal.

The receipt of timely notice by a defendant is a procedural matter for which an objection could be made at the outset of the sentencing hearing. If the notice is inadequate, that issue should be preserved at sentencing and raised on direct appeal. It is easy at a sentencing hearing to determine whether the defendant received notice at some point in the recent past. If he did not, the hearing can be reset or the error quickly corrected on direct appeal.

If this notice issue renders the sentence illegal, the lack of notice can be raised at any time during the life of the sentence. While this issue may be easy to resolve at a sentencing hearing, it is a far more difficult matter to resolve two years or ten years after the sentencing hearing. This complexity, coupled with a great doubt that this error is fundamental, convinces me that we should not look behind the face of the record to determine whether such a sentence is illegal. Cf. Lomont v. State, 506 So.2d 1141 (Fla. 2d DCA 1987) (defendant foreclosed on motion for postconviction relief from raising scoresheet calculation error not apparent from face of scoresheet).

It seems to me that a defendant might have the option under rule 3.850 to establish that his due process rights were violated by insufficient notice or that his attorney was ineffective for failing to preserve the notice issue for direct appeal. Such a challenge, however, would require allegations in addition to those contained in this motion under rule 3.800 and would be subject to the time limitations of rule 3.850.

I would note that Grubbs may be distinguishable. Mr. Grubbs filed a motion under rule 3.850 rather than rule 3.800. The opinion states that "the record" reveals "no advance written notice that he might be sentenced as a habitual offender was given to appellant as required by the statute." Grubbs, 412 So.2d at 27. Our record in this appeal contains the written notice; we simply cannot determine whether Mr. Judge, in addition to his attorney, received notice. It is unclear whether Mr. Grubbs did or could have raised this issue on direct appeal. Moreover, the effect of the habitual offender status in that case was apparently less significant to the defendant than in this case. The trial court did not extend Mr. Grubbs' sentence as a habitual offender. Instead, Mr. Grubbs received concurrent mandatory minimum three-year sentences. See Secs. 775.084, 775.087(2) Fla.Stat. (1979). This court merely struck the reference to the status without otherwise altering his sentence.

Finally, I would note that the order on appeal recites the fact that Mr. Judge was notified at the time of his plea on May 12, 1989, that pursuant to his plea agreement he would be sentenced to fifteen years' incarceration as a habitual offender if that status were proven at the sentencing hearing. No records were attached to the order to support this recitation. If those records exist, in light of the admission that Mr. Judge's attorney received the notice, they

would appear to satisfy the requirements of Roberts v. State, 559 So.2d 289 (Fla. 2d DCA), dismissed, 564 So.2d 488 (Fla.1990).

OPINION ON REHEARING EN BANC

ALTENBERND, Judge.

Gilbert Judge appeals the summary denial of his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). On rehearing en banc, we affirm the denial of the motion because it fails to allege facts establishing an illegal sentence.

The defendant was arrested for possessing cocaine on January 8, 1989. He pleaded guilty to these charges in May 1989, and was sentenced to fifteen years' incarceration as a habitual offender on July 26, 1989. The sentence was appealed to this court, and we affirmed without written opinion. Judge v. State, 569 So.2d 449 (Fla. 2d DCA 1990). Our records confirm that the direct appeal unsuccessfully challenged the sufficiency of the habitual offender findings. The briefing in the appeal reflects that the defendant's trial counsel conceded that his client met the criteria for a habitual offender sentence. Moreover, the trial court received evidence indicating the defendant had been convicted of numerous prior felonies.

After the conclusion of his appeal, the defendant filed a motion for correction of his sentence pursuant to rule 3.800(a). He maintained that his habitual offender sentence was illegal for two reasons. First, he argued that the state had relied upon two convictions which were both entered on June 19, 1985. He alleged that he had received only one conviction on that date. The trial court denied this portion of the motion, attaching the necessary documents to show that there had in fact been two convictions entered on June 19, 1985, and finding that this evidence "along with the evidence of the other convictions" had been sufficient to allow sentencing under the habitual offender statute. See State v. Barnes, 595 So.2d 22 (Fla.1992).

Second, the defendant argued that he had not personally received written notice of the state's intention to sentence him as a habitual offender. See Sec. 775.084(3)(b), Fla. Stat. (Supp.1988). He admitted that the trial court record contained a notice of intent, filed on June 20, 1989, to impose a sentence under the habitual offender statute. He further admitted that his attorney received a copy of this notice. The trial court summarily denied this portion of his motion, finding that appellant was aware of the possibility of enhancement by virtue of his plea agreement. The court further found that the issue of lack of notice of enhancement could not be raised in a motion to correct an illegal sentence. The trial court, however, did not attach the plea agreement or the transcripts of the plea and sentencing hearings to its order.

I. RULE 3.800(a) HAS NARROWER APPLICATION THAN EITHER DIRECT APPEAL OR RULE 3.850

In evaluating this appeal, it is important to appreciate two matters that are not alleged. First, the defendant's motion does not deny that he has committed two predicate offenses authorizing the trial court to classify him as a habitual offender. Second, the motion does not allege a sworn basis for relief under rule 3.850. It is merely an unsworn motion for correction of an illegal sentence filed pursuant to rule 3.800(a). The defendant's motion does not allege factual recitations of specific steps he would have taken to prepare any submission to the sentencing court if he had...

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