Richardson v. State, Nos. 96-266

CourtCourt of Appeal of Florida (US)
Writing for the CourtLAWRENCE; ALLEN, J., concurs and dissents with opinion in which PADOVANO; ALLEN
Citation698 So.2d 551
Parties22 Fla. L. Weekly D1498 Joseph RICHARDSON, Jr., Appellant, v. STATE of Florida, Appellant. Donald COHRON, Appellant, v. STATE of Florida, Appellee.
Decision Date17 June 1997
Docket Number96-1502,Nos. 96-266

Page 551

698 So.2d 551
22 Fla. L. Weekly D1498
Joseph RICHARDSON, Jr., Appellant,
v.
STATE of Florida, Appellant.
Donald COHRON, Appellant,
v.
STATE of Florida, Appellee.
Nos. 96-266, 96-1502.
District Court of Appeal of Florida,
First District.
June 17, 1997.

Appellant Joseph Richardson, Jr., pro se.

Appellant Donald Cohron, pro se.

Robert A. Butterworth, Attorney General; Sonya Roebuck Horbelt, Assistant Attorney General, Tallahassee, for Appellee.

EN BANC
CRIMINAL DIVISION

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

Page 552

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...

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12 practice notes
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • 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, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • 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, No. 90516
    • United States
    • United States State Supreme Court of Florida
    • June 11, 1998
    ...fairness, if not due process, 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 Nevertheless, rule 3.800(a) is far from an adequate tool to review most......
  • Schebel v. State, No. 97-2879.
    • United States
    • Court of Appeal of Florida (US)
    • 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
12 cases
  • Childers v. State, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • 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, No. 1D03-2154.
    • United States
    • Court of Appeal of Florida (US)
    • 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, No. 90516
    • United States
    • United States State Supreme Court of Florida
    • June 11, 1998
    ...fairness, if not due process, 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 Nevertheless, rule 3.800(a) is far from an adequate tool to review most......
  • Schebel v. State, No. 97-2879.
    • United States
    • Court of Appeal of Florida (US)
    • 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

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