Mancino v. State, 97-00583

• Decision Date: 14 March 1997
• Docket Number: No. 97-00583,97-00583
• Citation: 689 So.2d 1235
• Parties: 22 Fla. L. Weekly D686 Joseph Sal MANCINO, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 1235

689 So.2d 1235

22 Fla. L. Weekly D686

Joseph Sal MANCINO, Appellant, v. STATE of Florida, Appellee.

No. 97-00583.

District Court of Appeal of Florida,

Second District.

March 14, 1997.

LAZZARA, Judge.

The appellant, Joseph Mancino, challenges the trial court's denial of a motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a) in which he contended that there was no factual basis to support the imposition of a three-year minimum mandatory sentence for possessing a firearm during the commission of a felony. Because we conclude that the trial court erroneously determined in the face of our prior holdings that it could not consider the merits of the appellant's motion under the auspices of rule 3.800(a), we reverse and remand for further proceedings. In doing so, we certify conflict with other district courts of appeal which have taken a contrary position on this issue, as well as certify a question of great public importance to the Florida Supreme Court regarding whether rule 3.800(a) is the appropriate postconviction procedural mechanism to raise a claim such as the appellant's in view of one of its recent opinions.

The appellant pleaded no contest to armed burglary in February of 1984. In accord with a negotiated plea agreement, he was sentenced to four years' imprisonment with a three-year minimum mandatory pursuant to section 775.087(2), Florida Statutes (1983). This section provides in part that a person "who had in his possession a 'firearm' " during the commission of certain enumerated felonies, one of which is burglary, "shall be sentenced to a minimum term of imprisonment of 3 calendar years." As interpreted, it requires actual physical possession of a firearm, as opposed to vicarious or constructive possession, to justify the imposition of a minimum mandatory term. See, e.g., Earnest v. State, 351 So.2d 957 (Fla.1977).

There is no indication in this record, including the trial court's order and attachments, whether the appellant later challenged the underlying factual basis for this minimum mandatory term either by motion to withdraw his plea, direct appeal, or a sworn motion filed under Florida Rule of Criminal Procedure 3.850 within two years of his judgment and sentence becoming final. The record reflects, instead, that in December of 1996 the appellant filed an unsworn motion under rule 3.800(a) claiming that the three-year minimum mandatory portion of his sentence was illegal because there was no record evidence establishing that he had actual possession of a firearm at the time he committed the burglary.

The trial court subsequently denied the motion after concluding that such a claim must be raised under rule 3.850 instead of rule 3.800(a). It further determined that the appellant's claim was time-barred under the two-year limitation period of rule 3.850 and supported this determination by attaching a copy of the appellant's judgment and sentence dated February 17, 1984. The appellant filed a timely notice of appeal and, for the reasons expressed, we must now reverse and remand for further proceedings.

We first address the issue of the appellant's standing to raise this claim. Although we realize that an illegal sentence can be addressed at any time, see, e.g., Bedford v. State, 633 So.2d 13, 14 (Fla.1994), common sense would dictate that the appellant has long since served this sentence. In the motion before us, however, he alleged that he is currently serving this sentence and is "markedly prejudiced by the imposition of a three (3) year minimum applied against his aggregate four (4) year prison term." The appellant supported this assertion by attaching a copy of a memorandum from the Department of Corrections dated May 23, 1996, denying his request for the application of gain-time credit against the minimum mandatory portion of his sentence. We conclude from this record, therefore, and not without some regret, that even though the appellant for some unexplained reason waited almost thirteen years to question the underlying factual basis for his minimum mandatory sentence, nevertheless, he has sufficiently alleged entitlement to relief under rule 3.800(a) in accord with our prior holdings. See, e.g., Poiteer v. State, 627 So.2d 526, 527 (Fla. 2d DCA 1993) (holding that in a rule 3.800(a) motion a defendant must specifically allege prejudice by application of section 775.087(2)). Moreover, as the appellant alleged, if his sentence is truly illegal, he cannot acquiesce in the trial court's imposition of an illegal sentence even if it is imposed pursuant to a plea agreement. See, e.g., Williams v. State, 500 So.2d 501, 503 (Fla.1986).

In arriving at this conclusion, we are mindful of the recent amendments to Florida Rule of Criminal Procedure 3.800 and Florida Rules of Appellate Procedure 9.020 and 9.140 relating to unlawful and illegal sentences in which the supreme court has sent a clear and definite signal that it intends for issues involving such sentences to be presented expeditiously to the trial and appellate courts of this state for immediate resolution. See Amendments to Florida Rule of Appellate Procedure 9.020(g) and Florida Rule of Criminal Procedure 3.800, 675 So.2d 1374, 1375-1376 (Fla.1996), as amended in 685 So.2d 1253, 1270-1271 (Fla.1996), and 685 So.2d 773, App. 782-783 (Fla.1996); Amendments to the Florida Rules of Appellate Procedure, 685 So.2d 773, App. 799-807 (Fla.1996). See also § 924.051, Fla. Stat. (Supp.1996) (imposing terms and conditions for appeals and collateral review in criminal cases). We can only hope that these amendments, coupled with the court's recent pronouncement in State v. Montague, 682 So.2d 1085, 1088 (Fla.1996), emphasizing again that a "sentencing hearing is the appropriate time to object to alleged sentencing errors based on disputed factual matters[,]" will act to curtail in the future what has transpired in this case: the resurrection of a long since final judgment and sentence to resolve a disputed factual issue, together with the accompanying burden it has placed on the already over stretched resources of this state's criminal justice system to settle that dispute some thirteen years later. Because, however, these new amendments became effective long after the appellant was sentenced, they do not apply.

We next observe that this court has consistently held, not without some disagreement, that a defendant may properly invoke rule 3.800(a) as the appropriate postconviction vehicle to challenge the legality of a minimum mandatory sentence imposed under section 775.087(2) based on a claim that there is no evidence to support the fact that the defendant actually possessed a firearm during the commission of one of the statutorily enumerated felonies. See, e.g., Word v. State, 682 So.2d 642 (Fla. 2d DCA 1996); Brown v. State, 633 So.2d 112 (Fla. 2d DCA 1994) (Altenbernd, J., dissenting). We must, therefore, consistent with our precedent, reverse the trial court's order and direct on remand that it determine whether the appellant manually possessed a firearm during the burglary. See Butchek v. State, 686 So.2d 21 (Fla. 2d DCA 1996). If the trial court can make this determination by referring to documents in the record, then these documents must be attached to any subsequent order denying the motion. Id. Otherwise, the trial court must conduct an evidentiary hearing to resolve the appellant's claim. See Robinson v. State, 640 So.2d 1200, 1201 (Fla. 2d DCA 1994).

We recognize that our precedent in this area of the law conflicts with two other districts. See Wickline v. State, 687 So.2d 327 (Fla. 1st DCA 1997) (holding that whether a defendant was in actual possession of a firearm during the commission of a felony so as to justify imposition of three-year minimum mandatory is not cognizable in proceedings brought under rule 3.800(a) and certifying conflict with Butchek ); ¹ Young v. State, 616 So.2d 1133 (Fla. 3d DCA 1993) (holding that a challenge to an inadequate factual basis to support imposition of three-year minimum mandatory under section 775.087(2) must be brought by motion under rule 3.850 and not rule 3.800(a)). Another district, however, agrees with our approach. See Todd v. State, 659 So.2d 1350 (Fla. 5th DCA 1995) (citing Poiteer in support of vacating trial court's denial of rule 3.800(a) motion alleging no factual basis to support imposition of three-year minimum mandatory and remanding for trial court either to delete minimum mandatory sentence or to attach to its order portions of record establishing factual basis for the plea as to the minimum mandatory). Accordingly, in an effort to have the Florida Supreme Court expeditiously resolve these contrary positions, we deem it appropriate to certify conflict with the First District's opinion in Wickline and the Third District's opinion in Young.

We also deem it appropriate to seek guidance from the Florida Supreme Court regarding whether a defendant must invoke rule 3.800(a) or rule 3.850 as the proper postconviction legal mechanism to attack a three-year minimum mandatory sentence imposed in accord with section 775.087(2) on the basis that there is no factual support to establish that a firearm was possessed during the commission of a statutorily designated felony. Our motivation for doing so stems from its recent decision in State v. Callaway, 658 So.2d 983 (Fla.1995).

In that case, the supreme court considered, in response to two certified questions from this court, whether rule 3.800(a) or rule 3.850 should be the basis for resolving a postconviction attack on a Hale sentencing issue. See Hale v. State, 630 So.2d 521 (Fla.1993) (prohibiting imposition of consecutive habitual felony offender sentences under section 775.084, Florida Statutes, for multiple offenses arising out of the same criminal episode), cert. denied, 513 U.S. 909, 115 S.Ct. 278, 130 L.Ed.2d 195 (1994). In its consideration of this issue, the court...