State v. Crecy

• Decision Date: 07 April 2021
• Docket Number: Case No. 2D20-2580
• Citation: 320 So.3d 807
• Court: Florida District Court of Appeals
• Parties: STATE of Florida, Petitioner, v. Terry Lewis CRECY, Respondent.

320 So.3d 807

STATE of Florida, Petitioner,

v.Terry Lewis CRECY, Respondent.

Case No. 2D20-2580

District Court of Appeal of Florida, Second District.

Opinion filed April 7, 2021.

Ashley Moody, Attorney General, Tallahassee, and Kiersten E. Jensen, Assistant Attorney General, Tampa, for Petitioner.

Julianne M. Holt, Public Defender, and Deborah A. Goins, Assistant Public Defender, Tampa, for Respondent.

LaROSE, Judge.

The State seeks a writ of certiorari, or in the alternative, a writ of prohibition. It wants us to quash the postconviction court's order granting Terry Lewis Crecy's motion to correct illegal sentence, entered in a juvenile resentencing proceeding. See Fla. R. Crim. P. 3.800(a). We have jurisdiction. See Fla. R. App. P. 9.030(b)(2)(A) ; (b)(3). We dismiss the certiorari petition and deny the prohibition petition.

Background

The State indicted Mr. Crecy in 2004 for first-degree murder stemming from an attempted robbery. Mr. Crecy was sixteen at the time of the offenses.

Pursuant to a negotiated disposition, Mr. Crecy pleaded guilty to second-degree murder with a firearm (count 1) and attempted armed robbery (count 2). In 2007, the trial court sentenced him to a mandatory minimum twenty-five years' imprisonment followed by ten years' probation on count 1 and a concurrent twenty-five-year mandatory minimum term on count 2. See §§ 782.04(2), Fla. Stat. (2003) (prescribing "imprisonment for a term of years not exceeding life" for second-degree murder); 775.087(2)(a)(1)(a), (c), (3), Fla. Stat. (2003) (mandating the imposition of a twenty-five year mandatory minimum term for a defendant convicted of murder or attempted robbery who, during commission of the offenses "discharged a 'firearm' ... and, as the result of the discharge, death or great bodily harm was inflicted upon any person").

In 2018, Mr. Crecy filed a rule 3.800(a) motion to correct illegal sentence, relying on Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), Atwell v. State, 197 So. 3d 1040, 1048-50 (Fla. 2016), and Horsley v. State, 160 So. 3d 393 (Fla. 2015). The State conceded that Mr. Crecy's sentences were unconstitutional under then-existing law. In September 2018, the postconviction court granted Mr. Crecy's motion.¹

Some seven months later, in April 2019, the State filed its "Response to Defendant's Motion to Correct Illegal Sentence and Objection to Resentencing, or in the Alternative, Motion to Stay Proceedings." The Florida Supreme Court had released several opinions undermining Mr. Crecy's claims for relief. See Franklin v. State, 258 So. 3d 1239, 1241 (Fla. 2018) ("As we held in Michel[ v. State, 257 So. 3d 3, 8 (Fla. 2018) ], involving a juvenile homicide offender sentenced to life with the possibility of parole after 25 years, Florida's statutory parole process fulfills Graham's requirement that juveniles be given a 'meaningful opportunity' to be considered for release during their natural life based upon 'normal parole factors,' [ Virginia v. LeBlanc, ––– U.S. ––––, 137 S. Ct. 1726, 1729, 198 L.Ed.2d 186 (2017) ], as it includes initial and subsequent parole reviews based upon individualized considerations before the Florida Parole Commission that are subject to judicial review." (citing Michel, 257 So. 3d at 6 )). The postconviction court treated the State's response as a motion for rehearing. It dismissed the motion for lack of jurisdiction.

The State did not seek further review. And so, in March 2020, the postconviction court commenced Mr. Crecy's resentencing hearing. Due to the COVID-19 pandemic, Mr. Crecy's resentencing has yet to be completed.

In early May 2020, the State filed a "Motion for Rehearing," arguing that additional new case law further undermined Mr. Crecy's claim that his sentences were illegal and that he was entitled to resentencing. See Pedroza v. State, 291 So. 3d 541, 548-49 (Fla. 2020) (holding that defendant's forty-year sentence for second-degree murder imposed upon a juvenile offender was not unconstitutional under the Eighth Amendment as interpreted by Miller and Graham, and that Ms. Pedroza was not entitled to resentencing). In August 2020, the postconviction court denied rehearing.

Thereafter, in September 2020, the State filed a certiorari petition to "review ... the [postconviction] court's determination that it has jurisdiction to modify Crecy's legal sentence and resentence Crecy" or, alternatively, to "issue a Writ of Prohibition preventing the trial court from conducting a resentencing hearing ... when that resentencing is based on laws receded from by the Florida Supreme Court[ ] ... and will result in an illegal sentence."

Analysis

At the outset, we stress that we do not reach, much less resolve, the State's argument that Mr. Crecy's current sentences are legal and that any modification would render them illegal. See Carter v. State, 786 So. 2d 1173, 1181 (Fla. 2001) ("[A] sentence is 'illegal' if it 'imposes a kind of punishment that no judge under the entire body of sentencing statutes could possibly inflict under any set of factual circumstances.' " (quoting Blakley v. State, 746 So. 2d 1182, 1187 (Fla. 4th DCA 1999) )); e.g., State v. Moran, 310 So.3d 972, 974 (Fla. 2d DCA 2020) (holding that the postconviction court imposed an illegal sentence when it granted the juvenile offender's rule 3.800(a) motion and resentenced him to twenty-four years' imprisonment followed by a twenty-year probationary term instead of the mandatory minimum term required by section 782.04, Florida Statutes (2017) ), review denied, No. SC20-503, 2020 WL 6058575 (Fla. Oct. 14, 2020). Rather, we examine the controlling question of whether the State is entitled to the relief it seeks. See Fla. Carry, Inc. v. Univ. of N. Fla., 133 So. 3d 966, 981 (Fla. 1st DCA 2013) (en banc) (Wetherell, J., specially concurring) ("[P]rinciples of judicial restraint counsel against addressing issues ... which are not necessary to resolve the case before the court."). We conclude that it is not.

I. Petition for Certiorari

(a) State's Petition is Untimely

In our district, the postconviction court's September 2018 order granting Mr. Crecy's rule 3.800(a) motion is a nonfinal nonappealable order. See Croft v. State, 295 So. 3d 307, 309 (Fla. 2d DCA 2020) ("We have held that a rule 3.800(a) order finding that a movant is entitled to be resentenced, without imposing a new sentence, is a nonfinal nonappealable order." (citing State v. Rudolf, 821 So. 2d 385, 386 (Fla. 2d DCA 2002) )); see also Fla. R. App. P. 9.140(c)(1)(J) (permitting the State to appeal orders "granting relief under Florida Rules of Criminal Procedure 3.801, 3.850, 3.851, or 3.853"). "Notably absent [from the ambit of rule 9.140(c)(1)(J) ] is the right to appeal from a rule 3.800(a) order." Morgan v. State, 293 So. 3d 1081, 1084 (Fla. 2d DCA 2020), review granted, No. SC20-641, 2020 WL 3494396 (Fla. June 29, 2020) ; see also Williams v. State, 313 So.3d 788, 790 (Fla. 2d DCA Jan. 6, 2021) ("We acknowledge there is a split in the decisions of the district courts of appeal as to whether an order granting a rule 3.800(a) motion, prior to resentencing occurring, is a final, appealable order and whether the postconviction court retains jurisdiction to reconsider its ruling granting the motion prior to resentencing.").

In Morgan, 293 So. 3d at 1085, we reasoned that because an order granting a rule 3.800(a) motion is a nonfinal nonappealable order, "the postconviction court retained jurisdiction over the case." Consequently, a postconviction court "may reconsider [its] interlocutory, nonfinal orders at any time [it] ha[s] jurisdiction and before a final judgment or order has been rendered." Id. ("Nothing in this rule [concerning rehearing motions] precludes the trial court from exercising its inherent authority to reconsider a ruling while the court has jurisdiction of the case." (quoting Fla. R. Crim. P. 3.192 )).²

Morgan's rationale relied on the fact that the postconviction court granted the State's motion for reconsideration of the court's earlier order granting Mr. Morgan's rule 3.800(a) motion. In other words, the Morgan postconviction court "exercis[ed] its inherent authority to reconsider a ruling while the court ha[d] jurisdiction of the case." Fla. R. Crim. P. 3.192. However, in our case, the postconviction court entered a May 2019 order denying the State's April 2019 rehearing motion. Obviously, the postconviction court declined to exercise its inherent authority to reconsider its prior ruling. See Reconsider, Merriam-Webster, https://www.merriamwebster.com/dictionary/reconsider (last visited Mar. 1, 2021) (defining "reconsider" as "to consider again especially with a view to changing or reversing").

More apt than the nebulous contours of "inherent authority" are the specific rehearing provisions in rule 3.800. Cf. Palm Beach Cnty. Canvassing Bd. v. Harris, 772 So. 2d 1273, 1287 (Fla. 2000) ("[I]t is well settled that where two statutory provisions are in conflict, the specific statute controls the general statute."). The relevant rehearing provision states that "[a] party may file a motion for rehearing of any signed, written order entered under subdivision[ ] (a) ... of this rule within 15 days of the date of service of the order." Fla. R. Crim. P. 3.800(b)(1)(B). Further, "[a] timely filed motion for rehearing shall toll rendition of the order subject to appellate review and the order shall be deemed rendered upon the filing of a signed, written order denying the motion for rehearing." Id. Rule 3.800's plain language envisions a single rehearing motion.

However, the State purports to invoke our jurisdiction upon the postconviction court's August 2020 order denying its successive rehearing motion. This poses two problems. See generally Fla. R. App. P. 9.020(h)(1)(B) (providing that an authorized and timely rehearing motion tolls rendition of an order subject to...