Plott v. State

• Decision Date: 04 April 2012
• Docket Number: No. 2D10–5719.,2D10–5719.
• Citation: 86 So.3d 516
• Parties: William J. PLOTT, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

86 So.3d 516

William J. PLOTT, Appellant,
v.
STATE of Florida, Appellee.

No. 2D10–5719.

District Court of Appeal of Florida,
Second District.

March 2, 2012.
Rehearing Denied April 4, 2012.

[86 So.3d 517]

William J. Plott, pro se.

Pamela Jo Bondi, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.

ALTENBERND, Judge.

William J. Plott appeals the order denying his motion to correct an illegal sentence. Mr. Plott maintains that he was entitled to a jury trial in 2005 to determine the factual grounds for his resentencing under Heggs v. State, 759 So.2d 620 (Fla.2000), because it resulted in an upward departure sentence of life imprisonment. Despite the discussion in State v. Fleming, 61 So.3d 399 (Fla.2011), which arguably supports his position on this issue, we conclude that Mr. Plott is not entitled to raise this issue under Florida Rule of Criminal Procedure 3.800(a).

Mr. Plott is serving four life sentences for sexual batteries committed in July 1996. A jury convicted him of these offenses in November 1997. The trial court initially sentenced Mr. Plott to life imprisonment for these offenses under the 1995 guidelines. We affirmed the direct appeal of his judgments and sentences in 1999. See Plott v. State, 731 So.2d 1285 (Fla. 2d DCA 1999) (table decision).¹ In 2000, the supreme court held that the 1995 guidelines were unconstitutional. See Heggs, 759 So.2d 620. Thus, Mr. Plott was resentenced for these offenses in 2005.

By the time of the resentencing, the United States Supreme Court had issued its opinions in both Apprendi² and Blakely.³ The trial judge and the lawyers at the resentencing discussed the effect of these decisions, and the trial court concluded that it could provide grounds for an upward departure sentence without empaneling a new jury. Without conducting a new hearing, the trial court determined from the testimony at the initial trial that the offenses were committed in a manner that was especially heinous, atrocious, or cruel. This ground would authorize an upward departure. See§ 921.0016(3)(b), Fla. Stat. (1993). The trial court reimposed the four life sentences as upward departure sentences.

[86 So.3d 518]

Our record strongly suggests that an authorized finder of fact could have concluded that these offenses were especially cruel from this testimony.

Mr. Plott appealed the sentences imposed on resentencing. We affirmed the new sentences. See Plott v. State, 940 So.2d 432 (Fla. 2d DCA 2006) (table decision). In his appeal of the resentencing, he did not argue that the trial court erred by refusing to conduct a jury trial to determine the factual basis for the upward departure. It is noteworthy that the issue of whether a jury was required in this context was a hotly debated issue at that time. See Fleming, 61 So.3d at 404–05.

After this court affirmed his sentences, Mr. Plott did not file another postconviction motion until September 2010, when he filed this motion claiming that his life sentences are illegal. The trial court...