Richardson v. State, s. 96-266

Citation698 So.2d 551
Decision Date17 June 1997
Docket Number96-1502,Nos. 96-266,s. 96-266
Parties22 Fla. L. Weekly D1498 Joseph RICHARDSON, Jr., Appellant, v. STATE of Florida, Appellant. Donald COHRON, Appellant, v. STATE of Florida, Appellee.
CourtCourt of Appeal of Florida (US)

LAWRENCE, Judge.

The above cases involve the same issue and are consolidated for purposes of this appeal. Both appellants seek review of an order denying a motion to correct an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). The sole issue presented is whether relief is available pursuant to rule 3.800(a) 1 for a claim based on Hale v. State, 630 So.2d 521 (Fla.1993), 2 when the sentence imposed does not exceed the maximum provided by law. We affirm.

Donald Cohron (Cohron) pleaded nolo contendere to two counts of aggravated assault, committed prior to March 26, 1990. 3 He was sentenced as an habitual felony offender to consecutive prison sentences of ten years on one count and six years on the second count. Cohron's sole allegation is that "since defendant's two convictions in Counts l and 2 arose from a single criminal episode, indeed from a single act, the sentences may not be imposed consecutively," citing Hale.

Joseph Richardson, Jr. (Richardson) also was sentenced as an habitual offender to consecutive prison sentences of thirty years for possession of a firearm by a convicted felon and ten years on each of three counts of aggravated assault. Each of the offenses arose from a single criminal episode 4 committed prior to March 4, 1982. 5

The maximum sentences provided by law at the time of the offenses were ten years for aggravated assault and thirty years for possession of a firearm by a convicted felon. Because the sentences of Cohron and Richardson did not exceed the maximum provided by law, their respective sentences are not illegal and they are not entitled to relief under rule 3.800(a).

The supreme court has consistently held that a sentence is not illegal within the meaning of rule 3.800(a), so long as it does not exceed the maximum period provided by law. In Davis v. State, 661 So.2d 1193, 1197 (Fla.1995), the court said that "a departure sentence that is beyond the guidelines may be an erroneous sentence when written reasons are not properly filed, but it is not an illegal sentence when it is still within the maximum allowed by law." This decision was followed by Lee v. State, 679 So.2d 1158 (Fla.1996), wherein the trial judge failed to consider the defendant for classification as a youthful offender. In rejecting Lee's argument on his rule 3.800(a) motion that his prison sentence of 120 years exceeded that allowed for youthful offenders, the supreme court said:

Although Lee's sentence exceeds the maximum prescribed for youthful offenders, it does not exceed the maximum prescribed for second-degree murder.

Lee, 679 So.2d at 1160.

The supreme court, in State v. Callaway, 658 So.2d 983 (Fla.1995), considered whether a Hale claim could be raised in an unsworn motion pursuant to rule 3.800(a) either in lieu of a rule 3.850 motion or after the two-year time period for filing a rule 3.850 motion had expired. While the decision in Callaway put a Hale claim in proper perspective, its holding denying relief was arguably limited to the circumstances of that case wherein an evidentiary hearing was requested to determine the number of criminal episodes giving rise to the offenses. Nevertheless, the court's observation that "[t]he resolution of this issue hinges on whether a Hale sentencing error constitutes an 'illegal' sentence within the meaning of rule 3.800(a)," id. at 987, provides insight and direction, because the court answered that question in the negative.

We are of the view that the holding in Callaway would have been the same had no evidentiary hearing been required to determine the number of criminal episodes, based upon the plain language of Davis and Lee. Any doubt is erased by the decision in King v. State, 681 So.2d 1136 (Fla.1996). Here, the supreme court declined to find as "illegal" a hybrid split sentence of incarceration under the guidelines followed by probation as an habitual offender, "unless the total sentence imposed exceeds the statutory maximum for the particular offense at issue." Id. at 1140. Thus, the court meant exactly what it said in Davis and Lee, and was consistent with Callaway, albeit for more restrictive reasons in the latter case. It is clear that it is the statutory maximum which is relevant is determining whether a sentence exceeds the "maximum provided by law," notwithstanding that there may be other provisions of law, which when properly applied, would reduce the penalty below that of the statutory maximum. A remedy for an erroneous sentence thus is not available under rule 3.800(a). 6

Because Richardson's sentence for possession of a firearm by a convicted felon did not exceed thirty years, and no single sentence of the several sentences imposed for aggravated assault upon Cohron and Richardson exceeded ten years, these sentences are not illegal and Cohron and Richardson are not entitled to relief pursuant to rule 3.800(a).

We accordingly affirm the judgments and sentences imposed upon Cohron and Richardson. We nevertheless certify the following question to the supreme court as one of great public importance:

ARE CONSECUTIVE HABITUAL FELONY OFFENDER SENTENCES FOR MULTIPLE OFFENSES ARISING FROM A SINGLE CRIMINAL EPISODE, PROSCRIBED BY HALE v. STATE, 630 So.2d 521 (Fla.1993), ILLEGAL WITHIN THE MEANING OF RULE 3.800(a), WHEN NO SINGLE SENTENCE EXCEEDS THE STATUTORY MAXIMUM PROVIDED BY LAW?

Affirmed and question certified.

MINER, WEBSTER and MICKLE, JJ., concur.

ALLEN, J., concurs and dissents with opinion in which PADOVANO, J., concurs.

ALLEN, Judge, concurring in part and dissenting in part.

The majority necessarily first concludes that sentences in excess of the limits of statutes may be "illegal," but that sentences in excess of the limits of the state and federal constitutions are not. Then, by ignoring the statutory and factual contexts of the sentences involved in the present cases, the majority concludes that these sentences are not in excess of the statutory maximums and therefore not illegal. Although I join in certifying the question set forth in the majority opinion, I dissent from the majority's affirmance of the trial court orders in these cases.

Davis and Callaway, and Judge v. State, 596 So.2d 73 (Fla. 2d DCA 1991), which was discussed in Callaway, indicate that an "illegal sentence" remediable under rule 3.800(a) is a sentence not authorized by law, without regard to the guidelines or mere procedural irregularities, which is determinable simply from an examination of the court records concerning the adjudicated offense and the resulting sentence. Davis and Callaway specifically indicated that, in order to be "illegal," a sentence must be "one that exceeds the maximum period set forth by law for a particular offense."

In Callaway, the supreme court essentially adopted the discussion from Judge which recognized that there are three types of sentencing errors: (1) an "erroneous sentence" which is correctable on direct appeal; (2) an "unlawful sentence" which is correctable only after an evidentiary hearing under rule 3.850; and (3) an "illegal sentence" in which the error must be corrected as a matter of law in a rule 3.800(a) proceeding. Except for its indication that no evidentiary determination will be permitted in connection with a 3.800(a) motion, the Callaway court appeared to fully adopt the Judge definition of "illegal sentence." See Fountain v. State, 660 So.2d 376 (Fla. 4th DCA 1995).

Judge explained that an "illegal sentence" correctable under rule 3.800(a) exists where a penalty has been imposed "that is simply not authorized by law." It further pointed out that a sentence is not "illegal" merely because the procedure employed to impose the punishment might have failed to...

To continue reading

Request your trial
12 cases
  • Childers v. State
    • United States
    • Florida District Court of Appeals
    • June 28, 2006
    ...by criminal division without antecedent publication of panel decision), approved by 720 So.2d 216 (Fla. 1998); Richardson v. State, 698 So.2d 551 (Fla. 1st DCA 1997) (en banc decision released by criminal division without antecedent publication of panel decision); J.B. v. State, 689 So.2d 3......
  • Childers v. State
    • United States
    • Florida District Court of Appeals
    • June 28, 2006
    ...by criminal division without antecedent publication of panel decision), approved by 720 So.2d 216 (Fla. 1998); Richardson v. State, 698 So.2d 551 (Fla. 1st DCA 1997) (en banc decision released by criminal division without antecedent publication of panel decision); J.B. v. State, 689 So.2d 3......
  • State v. Mancino
    • United States
    • Florida Supreme Court
    • June 11, 1998
    ...requires that the State concede its error and correct the sentence "at any time." See Richardson v. State, 698 So.2d 551 (Fla. 1st DCA 1997) (Allen, J., concurring in part and dissenting in part). Nevertheless, rule 3.800(a) is far from an adequate tool to review most jail credit errors. Ma......
  • Schebel v. State, 97-2879.
    • United States
    • Florida District Court of Appeals
    • February 17, 1998
    ...sworn allegations. In so doing, we have considered Jefferson v. State, 677 So.2d 29 (Fla. 1st DCA 1996), and Richardson v. State, 698 So.2d 551 (Fla. 1st DCA), cause dismissed, 700 So.2d 687 (Fla.1997), and find them distinguishable in that these cases did not involve the youthful offender ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT