Pifer v. State
| Citation | 59 So.3d 225 |
| Decision Date | 06 May 2011 |
| Docket Number | No. 2D09–5550.,2D09–5550. |
| Parties | Chad PIFER, Appellant,v.STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Chad PIFER, Appellant,
v.
STATE of Florida, Appellee.
No. 2D09–5550.
District Court of Appeal of Florida, Second District.
March 25, 2011.Rehearing Denied May 6, 2011.
[59 So.3d 226]
Chad Pifer, pro se.Pamela Jo Bondi, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.KHOUZAM, Judge.
Chad Pifer appeals an order denying his claims for postconviction relief. He also challenges his resentencing on remand.1 We affirm, but we write to address an issue that was raised in the trial court by way of a motion to correct a sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). The issue involves Pifer's resentencing, on remand, by a successor
[59 So.3d 227]
judge without a showing that a substitution of judges was necessary.
In December 2005, Pifer entered a plea in eighteen separate cases involving burglary, dealing in stolen property, grand theft, possession of paraphernalia, and resisting arrest without violence. Pifer was adjudicated guilty and sentenced. The judgments and sentences were affirmed on appeal. Pifer v. State, 951 So.2d 40 (Fla. 2d DCA 2007).
In February 2008, Pifer filed a motion to correct illegal sentence, which was summarily denied. Pifer appealed the summary denial of his motion, and this court reversed and remanded for reconsideration. Pifer v. State, 8 So.3d 1154 (Fla. 2d DCA 2009).2 On remand, the postconviction court reconsidered Pifer's claim as well as additional claims for postconviction relief that had been raised by Pifer. In October 2009, the postconviction court granted relief on the sentencing claim and the judge who presided over the postconviction claims also resentenced Pifer. This judge was not the judge who had accepted Pifer's plea, but Pifer did not object to the successor judge presiding at his resentencing hearing. The postconviction court otherwise denied relief on Pifer's additional claims, including an ore tenus motion to withdraw the plea that was made by Pifer's counsel at the conclusion of the evidentiary hearing on Pifer's postconviction claims.
This appeal ensued. During the pendency of this appeal, Pifer filed a motion to correct sentencing error pursuant to rule 3.800(b)(2). In the motion, Pifer did not assert a specific error in the corrected sentencing order that was entered on remand. Rather, Pifer challenged only the fact that he was resentenced by a successor judge without the showing of necessity required by Florida Rule of Criminal Procedure 3.700(c)(1). The judge who resentenced Pifer denied his rule 3.800(b)(2) motion in a lengthy order explaining that she had more recent familiarity with Pifer's cases than did the judge who originally sentenced Pifer and that Pifer had an opportunity to object before resentencing but failed to do so.
On appeal, Pifer argues that the postconviction court erred in denying the ore tenus motion to withdraw plea and also that he must be afforded a new sentencing hearing because he was resentenced by a successor judge without a showing that a...
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...however, the appellate court must apply the stringent fundamental error standard." (emphasis added)); see also Pifer v. State , 59 So. 3d 225, 228 (Fla. 2d DCA 2011) (explaining that a sentencing error is one "in the sentence itself" and that "[r]ule 3.800(b) ‘may be used to correct and pre......
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Tarelo v. State
...(Fla. 1st DCA 2009) ; Boyd v. State, 988 So.2d 1242 (Fla. 2d DCA 2008), abrogated on other grounds as recognized in Pifer v. State, 59 So.3d 225, 228 (Fla. 2d DCA 2011) ; Gonzalez v. State, 876 So.2d 658 (Fla. 3d DCA 2004). This issue is currently before the supreme court in State v. Mosley......
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Carrion v. State
... ... when a defendant did not object at the time, no motion under ... rule 3.800(b) is necessary to preserve the issue for appeal; ... however, the appellate court must apply the stringent ... fundamental error standard." (emphasis added)); see ... also Pifer v. State, 59 So.3d 225, 228 (Fla. 2d DCA ... 2011) (explaining that a sentencing error is one "in the ... sentence itself" and that "[r]ule 3.800(b) 'may ... be used to correct and preserve for appeal any error in an ... order entered as a result of the sentencing ... ...
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Boyd v. State
...sentencing judge was unavailable. Boyd v. State, 988 So.2d 1242 (Fla. 2d DCA 2008), abrogated on procedural grounds by Pifer v. State, 59 So.3d 225 (Fla. 2d DCA 2011). As a result of that proceeding, the original sentencing judge orally resentenced Boyd on November 17, 2008, again removing ......
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