State v. Williams
| Decision Date | 21 July 2003 |
| Docket Number | No. 1D02-946.,1D02-946. |
| Citation | 854 So.2d 215 |
| Parties | STATE of Florida, Appellant, v. James WILLIAMS, Jr., Appellee. |
| Court | Florida District Court of Appeals |
Charlie Crist, Attorney General; Barbara J. Yates, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellant.
Nancy A. Daniels, Public Defender; Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellee.
In March 1997, Appellee James Williams, Jr., was convicted of two counts of sexual battery and one count of false imprisonment. Appellee was sentenced to concurrent sentences of 107.1 months on each of the sexual battery convictions and 60 months for false imprisonment. Appellee's convictions and sentence were affirmed on direct appeal and his convictions became final on February 5, 1998. Williams v. State, 710 So.2d 556 (Fla. 1st DCA 1998). In April 2001, Appellee filed a motion pursuant to Fla. R.Crim. P. 3.800(a), arguing: (i) his sentence violated double jeopardy because there was an insufficient spatial and temporal break between acts of digital and penile penetration to sustain two separate sexual battery convictions, and (ii) it was error to assess 80 victim injury points when the two sexual battery offenses for which he was convicted involved only one victim.
The trial court granted Appellee's motion. On resentencing, the trial court struck one count of sexual battery from his judgment and sentence and directed the corresponding points removed from the guideline scoresheet because of double jeopardy. The trial court also directed that the scoresheet reflect only 40 victim injury points because only one victim was involved, citing Hudson v. State, 765 So.2d 273 (Fla. 1st DCA 2000). Appellee was resentenced to 69.9 months in prison. Appellant, the State of Florida, appeals the trial court's orders granting Appellee's 3.800 motion.1 The State argues that Appellee's double jeopardy claim is a claim against his conviction rather than sentence, and is therefore barred because he failed to bring it in a timely filed motion filed pursuant to Fla. R.Crim. P. 3.850.2 The State also argues that the trial court improperly subtracted 40 points from Appellee's scoresheet because Fla. R.Crim. P. 3.702(d)(5), in effect when Appellee committed the two sexual batteries, provides that victim injury shall be scored for each victim physically injured and for each offense resulting in physical injury whether there are one or more victims. We agree with the State on these issues and reverse.
The trial court erred in considering Appellee's motion pursuant to Rule 3.800 and in granting his motion to set aside one of his convictions for sexual battery. Appellee's claim constitutes, in reality, a challenge to his convictions rather his sentence. See Robinson v. State, 816 So.2d 146 (Fla. 1st DCA 2002)
( that appellant's collateral attacks on double jeopardy grounds were time barred, citing Ferenc v. State, 563 So.2d 707 (Fla. 1st DCA 1990) and Gandy v. State, 560 So.2d 1363 (Fla. 1st DCA 1990)); see also McCraney v. Florida, 830 So.2d 262 (Fla. 5th DCA 2002)( that "double jeopardy challenges are not cognizable in a rule 3.800(a) proceeding because they are attacks on the underlying convictions, not the sentences"); Wiley v. State, 604 So.2d 6 (Fla. 1st DCA 1992)(same).
Because Rule 3.800 provides only an avenue for correcting, modifying, or reducing a sentence, appellee's post-conviction challenge to his conviction should have been raised in a timely filed motion pursuant to Rule 3.850, which allows a defendant to attack either sentence or conviction. Because Appellee's motion was filed more than two years after his convictions became final, we agree with the State that Appellee's double jeopardy claim is time barred.
In Jupiter v. State, 833 So.2d 169 (Fla. 1st DCA 2002)(en banc), review denied, 847 So.2d 977 (Fla. 2003), this court receded from Hudson and held that victim injury points should be assessed for each injury even though the offenses involve a single victim. In Jupiter, the trial court, relying on ...
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