Morgan v. State

• Decision Date: 03 April 2020
• Docket Number: Case No. 2D18-4940
• Citation: 293 So.3d 1081
• Parties: Darryl Len MORGAN, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

293 So.3d 1081

Darryl Len MORGAN, Appellant,

v.STATE of Florida, Appellee.

Case No. 2D18-4940

District Court of Appeal of Florida, Second District.

Opinion filed April 3, 2020.

Howard L. Dimmig, II, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant.

Ashley Moody, Attorney General, Tallahassee, and Allison C. Heim, Assistant Attorney General, Tampa, for Appellee.

BLACK, Judge.

Darryl Morgan challenges the postconviction court's order denying his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). In the order on appeal, the postconviction court vacated a previous order in which it had granted Morgan's motion and ordered resentencing. At the time that the postconviction court reconsidered Morgan's motion, Morgan's resentencing had not occurred and a change in the law clarified that Morgan's initial sentence was not illegal. Morgan contends that the postconviction court did not have jurisdiction to reconsider its previous order and that we must reverse the order denying his motion and remand for reinstatement of the previous order directing resentencing. We disagree and affirm the order on appeal.

Morgan was a juvenile in 1979 when he was convicted of murder in the second degree and sentenced to life in prison with the possibility of parole after twenty-five years. In September 2016, Morgan filed a rule 3.800(a) motion arguing that he was entitled to resentencing pursuant to Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and Atwell v. State, 197 So. 3d 1040 (Fla. 2016). On January 3, 2017, the postconviction court granted Morgan's motion, ruling that his life sentence was illegal and that he was therefore entitled to be resentenced. The State then filed a notice of appeal but voluntarily dismissed the appeal before it was perfected.

More than a year after the postconviction court had granted Morgan's motion, Morgan still had not been resentenced. His resentencing had been rescheduled multiple times at his request, and it was finally to occur on August 17, 2018. On August 16, 2018, the State filed a motion for reconsideration of the order granting Morgan's rule 3.800(a) motion. The State premised its motion on the argument that Atwell had been receded from in State v. Michel, 257 So. 3d 3 (Fla. 2018), and that therefore Morgan was not in the class of defendants entitled to resentencing pursuant to Miller. Morgan's resentencing was again continued, and after a hearing on the State's motion for reconsideration, the court granted the motion, vacated its previous order, and denied Morgan's rule 3.800(a) motion. The order on appeal was rendered November 30, 2018, more than a year and a half after the initial order granting Morgan's motion had been entered.

Morgan contends that the initial postconviction order granting his motion was a final appealable order and that the State's dismissal of its appeal coupled with the lapse of time in filing the motion for reconsideration rendered the postconviction court without jurisdiction to reconsider its prior ruling and order. Morgan finds support in Simmons v. State, 274 So. 3d 468 (Fla. 1st DCA 2019). Like Morgan, Simmons was a juvenile sentenced to life in prison who filed a rule 3.800(a) motion seeking resentencing based on Miller and Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). The postconviction court granted Simmons’ motion and ordered resentencing. However, before Simmons could be resentenced the postconviction court learned of changes in the law with regard to juvenile sentencing. And "[s]even months after granting Simmons' postconviction motion, the court entered an order rescinding its original order and denying the motion." Simmons, 274 So. 3d at 470. Simmons appealed from that order, and the First District concluded that "[b]ecause the order granting resentencing became final when neither party moved for rehearing or appealed the order, the trial court had no authority to enter a second order rescinding the original order." Id. The First District stated that it "ha[d] twice held that an order on a motion for postconviction relief is final and appealable even when resentencing has not occurred," citing Slocum v. State, 95 So. 3d 911 (Fla. 1st DCA 2012), and Jordan v. State, 81 So. 3d 595 (Fla. 1st DCA 2012), and that "the supreme court has agreed," citing Taylor v. State, 140 So. 3d 526 (Fla. 2014). Simmons, 274 So. 3d at 470.

In Jordan, the First District "addressed for the first time whether a postconviction order granting resentencing is final when resentencing has not yet occurred." Simmons, 274 So. 3d at 470-71. On appeal from an order denying Jordan's rule 3.800(a) motion following the State's motion for reconsideration of the initial order granting Jordan's motion, the First District held that the initial order granting resentencing was final "because it brought the postconviction proceedings to an end" and that the postconviction court lacked jurisdiction to reconsider it where the State's motion was untimely. Jordan, 81 So. 3d at 596.¹ Jordan relied upon State v. White, 470 So. 2d 1377 (Fla. 1985), which addressed rule 3.850 and writs of coram nobis and habeas corpus.

Like the supreme court's White decision, the Taylor decision relied upon by the First District arose in the context of a rule 3.850 motion for postconviction relief. There, the supreme court held "that an order disposing of a postconviction motion which partially denies and partially grants relief is a final order for purposes of appeal, even if the relief granted requires subsequent action in the underlying case, such as resentencing." 140 So. 3d at 528. The court went on to hold that its conclusion was "consistent with [the] recent amendments to Florida Rule of Criminal Procedure 3.850, effective July 1, 2013, which added subsection (f)(8)(C), stating that ‘[t]he order issued after the evidentiary hearing shall resolve all the claims raised in the motion and shall be considered the final order for purposes of appeal.’ " Id. at 529 (second alteration in original) (quoting In re Amendments to the Fla. Rules of Criminal Procedure & the Fla. Rules of Appellate Procedure, 132 So. 3d 734, 750 (Fla. 2013) ). Unlike rule 3.850, rule 3.800 does not state that an order resolving "all the claims raised in the motion" shall be a final order.

We note that subsequent to the issuance of Simmons, and in reliance on it, the Fourth District issued Jones v. State, 279 So. 3d 172 (Fla. 4th DCA 2019). The Fifth District has also followed Simmons. See Magill v. State, 287 So. 3d 1262 (Fla. 5th DCA 2019). But see Maysonet v. State, 722 So. 2d 230, 231 (Fla. 5th DCA 1998) (dismissing appeal from order granting in part and denying in part rule 3.800(a) motion where resentencing had not occurred and concluding that "there is additional judicial labor that will occur").

This court has held that a " rule 3.800(a) motion d[oes] not create a new, separate proceeding. Instead, it is a motion filed in continuation of the original criminal proceeding." State v. Rudolf, 821 So. 2d 385, 386 (Fla. 2d DCA 2002) ; see also Stewart v. State, 647 So. 2d 219, 220 (Fla. 2d DCA 1994) (dismissing appeal from order denying in part and granting in part rule 3.800(a) motion where resentencing had not yet occurred and concluding that "it is clear that the trial court's judicial labor has not yet ended because [the appellant] has not been resentenced ... and ... only after the [postconviction] court resentences [the appellant] will we have the jurisdiction to determine whether the ‘final and irreparable effect’ of any new sentence violates his right to the imposition of a legal sentence" (footnote omitted)). We have further held that an order granting a rule 3.800(a) motion "is essentially a nonfinal order entered after the entry of an appealable final order" and "that Florida Rule of Appellate Procedure 9.130(a)(4), permitting appeals of nonfinal orders entered after final orders, does not apply in this criminal context." Rudolf, 821 So. 2d at 386. "To the extent that section 924.066(2) ... seeks to confer jurisdiction for district courts to review adverse rulings granting or denying collateral or postconviction relief, that statute can apply constitutionally only to final orders." Id. Rudolf agreed with State v. Delvalle, 745 So. 2d 541, 542 (Fla. 4th DCA 1999) :

[W]hile the trial court has granted the Defendant's 3.800(a) motion, it has not and will not grant the Defendant any collateral relief until it resentences him. The order granting the Defendant's 3.800(a) motion is not a final order, as judicial labor, i.e., resentencing, is still required. Until the Defendant is resentenced, this Court cannot properly determine whether the trial court has erred. Accordingly, the State's appeal is dismissed without prejudice to the State to timely appeal the resentencing order.

The Third District has likewise held that in the context of a rule 3.800 motion "judicial labor is not completed until the defendant is resentenced," such that "[t]he time for appeal d[oes] not begin to run until the resentencing order [i]s entered." State v. Huerta, 38 So. 3d 883, 884-85 (Fla. 3d DCA 2010) ; see also Adams v. State, 949 So. 2d 1125, 1126 (Fla. 3d DCA 2007).

The conclusions in Rudolf, Huerta, and Delvalle are supported by the language of rule 9.140(c)(1), listing the orders that the State may appeal to include orders "granting relief under Florida Rules of Criminal Procedure 3.801, 3.850, 3.851, or 3.853." Fla. R. App. P. 9.140(c)(1)(J). Notably absent is the right to appeal from a rule 3.800(a) order. "The Florida Supreme Court has explained that ‘the State's right to appeal an adverse ruling is a limited one that is strictly governed by statute, rule and overriding constitutional principles.’ The State's right to appeal in criminal cases should be construed narrowly." State v. Knight, 931 So. 2d 254, 255 (Fla. 2d...