Kelly v. State, 99-629.
| Decision Date | 16 July 1999 |
| Docket Number | No. 99-629.,99-629. |
| Citation | 739 So.2d 1164 |
| Parties | Aundray KELLY, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Aundray Kelly, Sharpes, pro se.
Robert A. Butterworth, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
Aundray Kelly appeals the summary denial of his Florida Rule of Criminal Procedure 3.800(a) motion. He contends that his sentences are illegal because he was (1) sentenced as a youthful offender but improperly given a three year minimum mandatory term for armed robbery with a deadly weapon; (2) given consecutive sentences in excess of six years as a youthful offender; and (3) sentenced both as a youthful offender and as an adult. The trial court held that the first issue was raised in a prior motion, and therefore could not be reconsidered. The other issues raised were not specifically addressed by the trial court in its order denying relief.
Successive 3.800(a) motions readdressing issues previously considered and rejected on the merits and reviewed on appeal are barred by the doctrine of law of the case. See, Raley v. State, 675 So.2d 170 (Fla. 5th DCA 1996). In the instant case, however, Kelly's first motion was denied on procedural grounds, not on the merits, and no appeal was made of that decision. We find under these circumstances that the issue of the illegality of the sentence may be validly considered at this time.
Although the trial court's order could be reversed for this reason alone, and the case remanded for consideration on the merits, for the sake of judicial economy, and because the issues raised involve only legal questions, the merits of Kelly's issues are addressed presently.
Kelly's first argument is that a minimum mandatory term cannot be imposed in sentencing a youthful offender. In Porter v. State, 702 So.2d 257 (Fla. 4th DCA 1997), the court held that because a sentence imposed under the Youthful Offender Act, section 958.04, Florida Statutes (1997), is "in lieu of other criminal penalties authorized by law," a defendant sentenced under that act may not also be subjected to a minimum mandatory sentence for use of a firearm. See also Jones v. State, 588 So.2d 73 (Fla. 4th DCA 1991) (); Salazar v. State, 544 So.2d 313 (Fla. 2d DCA 1989) (). However, those cases were all direct appeals. The question here is whether the sentence imposed, six years with a three year minimum mandatory term, is an illegal sentence reviewable under a Rule 3.800(a) motion.
Recently, in State v. Mancino, 714 So.2d 429 (Fla.1998), the Florida Supreme Court expanded its definition of an illegal sentence reviewable under Rule 3.800(a), instructing that a sentence which patently fails to comply with statutory or constitutional limits is illegal. As noted in Bover v. State, 732 So.2d 1187, 24 Fla. L. Weekly D1033 (Fla. 3d DCA 1999), Rule 3.800(a) motions now routinely rely on the language in Mancino which has been interpreted to allow review of any sentencing error discernable from the face of the record.
Clearly, the imposition of a three year minimum mandatory term in this case is an illegal sentence under Mancino and is discernible from the face of the record. The minimum mandatory sentence imposed as part of the youthful offender sentence runs counter to the decision in Porter and fails to comply with the statutory caveat in the Youthful Offender Act that the exclusive penalty under the act shall be a maximum six year term. We therefore reverse the trial court's order as to this issue.
Kelly also argues that his sentences are illegal because he received consecutive youthful offender sentences exceeding the statutory maximum and he received a combination of youthful offender and adult sentences. The first allegation is factually incorrect, as shown by the judgments and sentences. The sentences in 97-30120, 97-30123 and 97-30124 are not youthful offender sentences and the trial court would not normally be bound by the youthful offender limitation. Cf. Schebel v. State, 721 So.2d 1177 (Fla. 1st DCA 1998), appeal dismissed, 723 So.2d 830 (Fla.1999), (consecutive youthful offender sentences exceeding applicable maximum of six years are illegal); Nguyen v. State, 566...
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