CLEVE ANDREW MOBLEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Mobley appealed his conviction and sentencing, challenging the trial court's retention of jurisdiction over a portion of a life sentence. The court affirmed the convictions but reversed the sentencing, holding that retention of jurisdiction is invalid when applied to a life sentence and is error of fundamental proportion.
First, sentencing errors involving a trial court's failure to follow mandatory statutory duties regarding sentencing procedures are fundamental error and not waived by failure to make a contemporaneous objection. Second, attempted retention of jurisdiction over a portion of a life sentence constitutes an illegal sentence and is error of fundamental proportion because Section 947.16(3) is inoperable when a life sentence is imposed. Third, retention of jurisdiction over portions of consecutive sentences must be calculated over the total consecutive sentence length, not each individual sentence.
[1] A trial court's failure to follow a mandatory statutory duty imposed upon sentencing procedures renders inoperable the bar to appellate review ordinarily consequent upon…
[2] Attempted retention of jurisdiction over a portion of a life sentence constitutes an illegal sentence and is error of fundamental proportion.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“a trial court's failure to follow a mandatory statutory duty imposed upon sentencing procedures renders inoperable the bar to appellate review ordinarily consequent upon failure to follow the contemporaneous objection rule”
Establishes that fundamental sentencing errors based on mandatory statutory duties bypass the contemporaneous objection requirement for appellability.
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Join FLexlaw to unlock all legal intelligenceAppellant Mobley was sentenced to life in prison on one count to run consecutively with a five-year sentence on a second count. The trial court retain…
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HERSEY, Judge.
We affirm appellant’s convictions and treat here only the objections to sentencing.
Appellant was sentenced to life in prison on one count to run consecutively with a five-year sentence on a second count with retention of jurisdiction over one-third of each sentence. No objection was made to the sentences.
The first issue is whether failure to object to the sentences waives appealability or whether sentencing errors of this type are fundamental.
The Florida Supreme Court in State v. Rhoden, 448 So. 2d 1013 (Fla.1984), and in State v. Snow, 462 So. 2d 455 (Fla.1985), enunciated the rule that a trial court’s failure to follow a mandatory statutory duty imposed upon sentencing procedures renders inoperable the bar to appellate review ordinarily consequent upon failure to follow the contemporaneous objection rule. That aspect of retention of jurisdiction involved in the Snow case, however, was the mandatory statutory duty to state with particularity the justification for retention rather than, as here, the validity vel non of retention over a life sentence. The First District Court of Appeal distinguished Rhoden on this basis but certified the question. Cofield v. State, 453 So. 2d 409 (Fla. 1st DCA 1984). The Fifth District Court of Appeal felt that this was a distinction without a difference, applied Rhoden, and also certified the question. Brumley v. State, 455 So. 2d 1096 (Fla. 5th DCA 1984).
In reaching the conclusion that this matter is appealable we necessarily create conflict with the first district’s Cofield case, although we do not necessarily agree with the fifth district’s Brumley case that our result is mandated by Rhoden and Snow.
The second issue is whether retention of jurisdiction over a life sentence is appropriate. As stated by the Third District Court of Appeal in a case apparently not involving failure to make a contemporaneous objection, “where a court imposes a life sentence, Section 947.16(3) [retention of jurisdiction] is inoperable ... and the defendant’s entitlement to parole consideration is solely controlled by the separate statutory requirement that he be required to serve no less than twenty-five years before becoming eligible for parole.” Cordero-Pena v. State, 421 So. 2d 661, 662 (Fla. 3d DCA 1982). See also Brown v. State, 460 So. 2d 988 (Fla. 4th DCA 1984); Kosek v. State, 448 So. 2d 57 (Fla. 5th DCA 1984). We agree with this rationale and therefore hold that attempted retention of jurisdiction over a portion of a life sentence constitutes an illegal sentence and is error of fundamental proportion.
We also point out that it was error to retain jurisdiction over one-third of each of appellant’s consecutive sentences, instead of one-third of the total consecutive sentences. Coree v. State, 411 So. 2d 1352 (Fla. 3d DCA 1982); see also Parson v. State, 450 So. 2d 924 (Fla. 4th DCA 1984); Ferrey v. State, 457 So. 2d 1122 (Fla. 3d DCA 1984); Wicker v. State, 445 So. 2d 583 (Fla. 2d DCA 1983). However, this issue is rendered moot by our holding as to the invalidity of retention of jurisdiction over a portion of the life sentence.
We affirm the convictions but vacate that aspect of the sentence retaining jurisdiction over a portion of the life sentence and remand for restructuring of the sentence to impose an appropriate period of retention over the five-year sentence on Count II.
REVERSED and REMANDED.
DOWNEY and BARKETT, JJ., concur.
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Anderson v. State, 584 So. 2d 1127 (Fla. 4th DCA 1991)…tive sentences imposed.” Case law tells us that [*1128] there is no way to determine one-third of a life sentence, and that therefore retention of jurisdiction over a portion of a life sentence is not possible under the statute. See Mobley v. State, 473 So. 2d 692 (Fla. 4th DCA 1985) and cases cited therein. Here the trial court sought to impose retention of jurisdiction on three consecutive sentences, two of which were for ninety-nine years and the other for life. We vacate the retention of jurisdiction pr…
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Cook v. State, 481 So. 2d 1285 (Fla. 4th DCA 1986)…tion for fifteen years. With that modification, the order appealed from is affirmed. Affirmed as modified. DOWNEY and WALDEN, JJ., and WES-SEL, JOHN D., Associate Judge, concur. . State v. Mobley, 481 So. 2d 481 (Fla.1986), aff’g Mobley v. State, 473 So. 2d 692 (Fla. 4th DCA 1985); Brown v. State, 460 So. 2d 988 (Fla. 4th DCA 1984); Kosek v. State, 448 So. 2d 57 (Fla. 5th DCA 1984); Rodriguez v. State, 424 So. 2d 892 (Fla. 3d DCA 1982); Cordero-Pena v. State, 421 So. 2d 661 (Fla. 3d DCA 1982).…
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Stettler v. State, 475 So. 2d 1009 (Fla. 1st DCA 1985)…Defendant, Terry Edward Stettler, appeals that portion of his life sentence wherein the trial court retained jurisdiction over one-third of the sentence. Retention of jurisdiction over a portion of a life sentence is not proper. Mobley v. State, 473 So. 2d 692 (Fla. 4th DCA, March 20, 1985); Brown v. State, 460 So. 2d 988 (Fla. 4th DCA 1984); Kosek v. State, [*1010] 448 So. 2d 57 (Fla. 5th DCA 1984); Willis v. State, 447 So. 2d 283 (Fla. 2d DCA 1983); Woodson v. State, 439 So. 2d 976 (Fla. 3d DCA 1983); R…
Authorities Cited (11 total)
- State v. Learnhart Rhoden, 448 So. 2d 1013 (Fla. 1984)
- Goree v. State, 411 So. 2d 1352 (Fla. 3d DCA 1982)
- State v. Snow, 462 So. 2d 455 (Fla. 1985)
- Belarmino Cordero-Pena v. State, 421 So. 2d 661 (Fla. 3d DCA 1982)
- Cofield v. State, 453 So. 2d 409 (Fla. 1st DCA 1984)
- Brumley v. State, 455 So. 2d 1096 (Fla. 5th DCA 1984)
- Wicker v. State, 445 So. 2d 583 (Fla. 2d DCA 1983)
- Kosek v. State, 448 So. 2d 57 (Fla. 5th DCA 1984)
- Parson v. State, 450 So. 2d 924 (Fla. 4th DCA 1984)
- Ferrey v. State, 457 So. 2d 1122 (Fla. 3d DCA 1984)