Sanders v. State, 92-1302
| Decision Date | 28 May 1993 |
| Docket Number | No. 92-1302,92-1302 |
| Citation | 621 So.2d 723 |
| Parties | 18 Fla. L. Week. D1331 Michael Allen SANDERS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
James M. Russ of Law Offices of James M. Russ, P.A., Orlando, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Barbara C. Davis, Asst. Atty. Gen., Daytona Beach, for appellee.
Sanders appeals from the trial court's denial of his motion to correct an illegal sentence brought pursuant to Florida Rule of Criminal Procedure 3.800(a). After a careful consideration of the history of Sanders' prior appeal and other related proceedings, the trial judge denied Sanders' motion on substantive grounds, the time bar of Florida Rule of Criminal Procedure 3.850, 1 and the prior "law of this case." We affirm.
This case has a long and unique history, which dictates the ultimate resolution of this proceeding. In July of 1986, Sanders was charged with Count I, armed robbery of Donald McClellan while carrying a firearm (a shotgun) and wearing a hood or mask; 2 Count II, aggravated assault on McClellan with a firearm (a shotgun) while wearing a hood or mask, 3 and Count III, unlawful display, use, and carrying a firearm (a shotgun) while committing a felony (armed robbery) while wearing a hood or mask. 4 Wearing a hood or mask while committing an offense enhances the degree of felony charged. Sec. 775.0845, Fla.Stat. (1985). That statute provides:
The penalty for any criminal offense ... shall be increased as provided in this section if, while committing the offense, the offender was wearing a hood, mask, or other device that concealed his identity.
(1) A misdemeanor of the second degree shall be punishable as if it were a misdemeanor of the first degree.
(2) A misdemeanor of the first degree shall be punishable as if it were a felony of the third degree.
(3) A felony of the third degree shall be punishable as if it were a felony of the second degree.
(4) A felony of the second degree shall be punishable as if it were a felony of the first degree.
Sanders was convicted of all three crimes. The evidence at trial established that on November 5, 1985, McClellan, the manager of a Red Lobster Restaurant in Orlando, arrived early in the morning to open for business. After he turned off the door alarm, he was confronted by a man wearing gloves and a ski mask, and carrying a shotgun. The man had apparently hidden overnight in the mens' restroom. He said:
Sanders marched McClellan and the other employees single file into the office. He directed McClellan to open the safe and place the cash into a bag. He warned McClellan against setting off any alarms. McClellan testified: "He pointed the gun at me and told me that if the police arrived, that he would blow my head off."
Sanders then walked everyone to the back door. He apparently knew the layout of the restaurant, and about the restaurant's alarm systems. He ordered the employees and McClellan into the freezer and told them not to come out for three minutes after he left. McClellan said the robber was not abusive, but appeared very much in control of the situation. Prudently, they obeyed his directions.
At the end of the trial on August 1, 1986, Sanders dismissed his attorney. Without appointing a successor counsel, or conducting a Feretta hearing, 5 the trial judge sentenced Sanders to thirty years for armed robbery, fifteen years for aggravated assault, and thirty years for the firearm offense. These sentences were beyond the applicable guidelines range. The trial judge explained his departure orally on the record: The crimes had been carried out in a "professional" manner; and, after the events in this case occurred, Sanders had been convicted of other crimes (some involving a Red Lobster Restaurant). Those events took place prior to the events in this case, but could not be scored. And the judge perceived that there is little hope for Sanders' rehabilitation.
On August 8, 1986, the trial judge held an amended sentencing at which he orally vacated the prior sentences and imposed identical sentences. At this hearing, Sanders was represented by counsel. The prosecutor had certified copies of Sanders' prior convictions, and a new scoresheet was prepared based on those documents. Defense counsel and Sanders both went over the scoresheet. Defense counsel said they thought it was "correct."
The trial judge orally stated on the record reasons why he was imposing a departure sentence. They were: three prior felony convictions which were unscored because the convictions were obtained after commission of the crimes in this case, and the professional manner in which this crime was accomplished. But no written reasons were placed of record.
The case was appealed to this court. On December 9, 1986, the state attorney moved to relinquish jurisdiction so that the sentences could be "corrected." Counsel pointed out that the trial court failed to place written reasons for departure in the record, and one offense was improperly designated a third degree rather than a first degree felony. This court granted the motion.
On January 14, 1987, the trial judge held a hearing to correct sentencing errors. Sanders was not present, but his public defender appeared. She objected to the fact that Sanders was not present. The trial judge explained he was merely correcting sentencing errors on remand, not resentencing.
The judge said he had timely dictated written reasons for departure to his secretary. She recalled typing them, but the document was misplaced and they could not find it. The court reviewed its reasons for departure: unscored crimes committed after the ones involved in this case; Sander's lack of rehabilitation in view of "numerous probations" and punishments; and the professional manner in which this crime was committed. He said any one of those reasons would cause him to "depart" from the guidelines. He also corrected the misdesignation of the possession of a firearm charge from being a third degree felony to a first degree felony.
Accordingly an amended judgment was entered on January 4, 1987, nunc pro tunc as of August 8, 1986. A written order giving reasons for a departure sentence was filed January 15, 1987, also nunc pro tunc to August 8, 1986. The order provides:
The court in sentencing the defendant, having departed from the Presumptive Guideline Sentence, sets forth as reasons for departure the following:
1. The professional manner in which the crime was carried out.
a. Placement of an automobile at the rear door of the restaurant to facilitate his escape.
b. Secreting himself above the ceiling in the restroom overnight.
c. Waiting until restaurant personnel arrived to deactivate burglar alarms.
d. Use of mask and gloves.
e. Defendant's calm manner while carrying out the robbery.
2. Prior convictions for burglary, grand theft second degree and possession of burglary tools which were not scored in this scoresheet (those charges were pending at the time Defendant committed this robbery, the Defendant having skipped bond).
3. The Defendant has, since the age of 12 years, served probationary sentences and periods of incarceration both as a juvenile and an adult. In spite of the opportunity to gain an appreciation of the consequences of violating the law and to learn to conform to the law, Defendant continues to violate the law and his convictions demonstrate an excalating [sic] seriousness of crimes committed. The pattern of increasing seriousness of the crimes committed and the Defendant's lack of response to punishment and probation manifested by his inability to remain at liberty without violating the law for even a moderate amount of time convince this Court that the Defendant is a career criminal with little likelihood of rehabilitation. The Defendant should be removed from society for the maximum period allowed by law.
The trial judge certified he had prepared a similar order within a "few days" of the August 8, 1986 sentencing but it had been misplaced. The only different or additional reason given in the written materials is the trial judge's finding there was a pattern of increasing or escalating seriousness of crimes committed.
From there, the case proceeded back to this court for appellate review. Both the sentences and the convictions were affirmed without opinion in June of 1987. See Sanders v. State, 507 So.2d 1230 (Fla. 5th DCA 1987). Judge Cobb dissented with the opinion on the sole ground that in his view, it was unnecessary and unfair to try Sanders in shackles, particularly when he was acting as co-defense counsel.
No collateral attack on this judgment was brought until January 29, 1991, when Sanders filed his pro se motion to correct an illegal sentence pursuant to rule 3.800(a). He argued his convictions for the three crimes involved in this cause violate his double jeopardy rights under the Federal and Florida Constitutions, 6 because they derive from "one criminal incident occurring during the commission of a single criminal episode." He also argued he was entitled to additional credit for time served on his sentences.
On March 13, 1992, Sanders' motion was amended and supplemented by counsel. Resentencing was sought to exclude points for the necessarily included "lesser offenses" (counts II and III) and to remand for sentencing pursuant to the guidelines, since the written reasons for departure were filed five months after the sentences were orally pronounced. On this appeal, appellant additionally contends that the scoresheet was improperly calculated based on an analysis of his prior record, and that the written reasons given for departure should be stricken because they vary from the trial judge's oral pronouncements.
After a hearing on April 3, 1992, the trial court denied both motions. It ruled the double jeopardy argument should not be...
To continue reading
Request your trial
-
Shaw v. State, 2D00-2955.
...double jeopardy prohibition. Such claims are not cognizable through a motion filed pursuant to rule 3.800(a), see Sanders v. State, 621 So.2d 723, 727 (Fla. 5th DCA 1993), unless the claim can be resolved without resort to an evidentiary hearing. See Hopping v. State, 708 So.2d 263, 265 (Fl......
-
State v. Moten, 96-1206
...improperly granted relief in this case. First, a 3.800 motion cannot be used to obtain relief from a judgment. See Sanders v. State, 621 So.2d 723 (Fla. 5th DCA 1993), rev. denied, 629 So.2d 135 (Fla.1993); State v. Spella, 567 So.2d 1051 (Fla. 5th DCA 1990). As the procedure used below mak......
-
Thompson v. State, 5D05-64.
...such a claim has no time limitation. He is mistaken. See State v. Williams, 854 So.2d 215 (Fla. 1st DCA 2003); Sanders v. State, 621 So.2d 723, 727 (Fla. 5th DCA 1993), review denied, 629 So.2d 135 (Fla.1993). In any event, his claim has no merit. See Collins v. State, 489 So.2d 188 (Fla. 5......
-
Labovick v. State
...scoresheet was without merit "as the new score remains in the same bracket and is essentially de minimis"); Sanders v. State, 621 So.2d 723, 728 (Fla. 5th DCA 1993) Reversed. STEVENSON, C.J., and POLEN, J. concur. 1. See Bautista v. State, 863 So.2d 1180, 1187 (Fla.2003) (each death caused ......