JOSEPH RICHARDSON, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Richardson appealed orders denying his post-conviction 3.850 motion challenging his sentence for aggravated assault and firearm possession charges. The court affirmed the denial of ineffective assistance of counsel claims but reversed and remanded the sentencing issue, finding that mandatory minimum sentences were impermissibly stacked in violation of Palmer v. State.
The court held that Richardson could properly pursue a second 3.850 motion to challenge the stacked mandatory minimum sentences because Palmer claims constitute new or different claims with good cause for failure to assert them earlier, and the impermissible stacking of mandatory minimum sentences constitutes fundamental error subject to collateral attack.
[1] A claim that mandatory minimum sentences were impermissibly stacked is a fundamental sentencing error subject to collateral attack via a motion for post-conviction relief…
[2] The rule established in Palmer v. …
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“Palmer v. State, 438 So.2d 1 (Fla.1983), may be applied retroactively to Richardson's sentences.”
Establishes that the Palmer doctrine regarding impermissible stacking of mandatory minimum sentences applies to Richardson's case even though his conviction predated the Palmer decision.
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Join FLexlaw to unlock all legal intelligenceRichardson was convicted of four counts of aggravated assault and one count of firearm possession by a convicted felon, all arising from a single robb…
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WIGGINTON, Judge.
Appellant’s initial appeal of his judgment to this Court was summarily denied, the Palmer stacking issue not having been raised due to the state of the law at the time. Richardson v. State, 410 So. 2d 632 (Fla. 1st DCA 1982). This appeal is from orders denying Richardson’s 3.850 motion and motion for rehearing following judgment and sentence for four counts of aggravated assault and one count of possession of a firearm by a convicted felon, all growing out of a single “stickup.” Appellant was thereupon given a sentence of ten years’ imprisonment as to each of three of the four counts, those sentences to run consecutively. In addition, three three-year mandatory minimum sentences were also imposed. As to the firearm possession charge, the court enhanced the penalties by imposing a thirty-year sentence. That sentence was also directed to run consecutively to the three sentences imposed on the aggravated assault convictions.
As to appellant’s initial argument, we agree with the trial court that Richardson has failed to show ineffective assistance of counsel and affirm the orders denying appellant’s motion for post-conviction relief except as it relates to the issue of stacking mandatory minimum sentences. Contrary to the trial court’s position, Palmer v. State, 438 So. 2d 1 (Fla.1983), may be applied retroactively to Richardson’s sentences. Moore v. State, 464 So. 2d 1296 (Fla. 1st. DCA 1985). Nonetheless, until just recently, this Court held that Richardson’s argument based on Palmer could only have been addressed on direct appeal and was therefore not cognizable by motion under rule 3.850, Florida Rules of Criminal Procedure. See Bass v. State, 478 So. 2d 461 (Fla. 1st DCA 1985), rev. granted, No. 68,230 (Fla. July 7, 1986) (oral argument set for October 27, 1986).
However, by its en banc opinion in Dowdell v. State, 500 So. 2d 594 (Fla. 1st DCA 1986), this Court receded from Bass and adopted the rationale of Aikens v. State, 488 So. 2d 543 (Fla. 1st DCA 1986),
... wherein this Court held that Aikens could obtain review of consecutive mandatory minimum sentences by a second Rule 3.850 motion because the claim under Palmer v. State, 438 So. 2d 1 (Fla.1983), was a new or different claim and there was good cause for failure to assert it in the prior motion. That “good cause,” lies in the fundamental nature of the alleged sentencing error as one which, at least in the context of Aikens and the present case [Dowdell], “could cause [defendant] to be incarcerated for a greater length of time than the law permits.”
Dowdell, at page 595.
The Richardson court, as in Ai-kens, impermissibly stacked mandatory minimum sentences rendering the sentence illegal; thus, the fundamental error is subject to collateral attack by a rule 3.850 motion, Dowdell, and Richardson properly filed his motion to assert this claim. Clearly, appellant’s consecutive mandatory minimum sentences were impermissibly imposed. Accordingly, Richardson’s motion for rehearing is granted to the extent that the stacking aspect of the sentence is reversed and the cause remanded to the trial court to correct the sentences to reflect that the mandatory minimum sentences be served concurrently.
AFFIRMED in part, REVERSED in part, and REMANDED.
MILLS and NIMMONS, JJ., concur.
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Richardson v. State, 698 So. 2d 551 (Fla. 1st DCA 1997)…t have his sentences further enhanced by ordering that the sentences run consecutively. .The exact date of the offenses is not reflected in the record, but Cohron alleges that he was sentenced on this date. . We determined, in Richardson v. State, 500 So. 2d 637 (Fla. 1st DCA 1986), that the consecutive minimum mandatory portions of Richardson’s sentences should run concurrently, pursuant to Palmer v. State, 438 So. 2d 1 (Fla.1983). . The record does not reflect the exact date on which the offenses were co…
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Castro Jesus Flores v. State, 745 So. 2d 977 (Fla. 3d DCA 1999)…ncluding where defendant robbed a Winn-Dixie store, holding a gun on several employees in order to effectuate the robbery, Palmer controlled, and the stacking of the minimum mandatory sentences was an illegal sentence). See also Richardson v. State, 500 So. 2d 637 (Fla. 1st DCA 1986)(concluding that where defendant was convicted of four counts of aggravated assault and one count of possession of a firearm by a convicted felon, all growing out of a single “stiekup,” Palmer could be applied retroactively to def…
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Knight v. State, 509 So. 2d 1254 (Fla. 1st DCA 1987)…nimum mandatory sentences, should remain intact. See Thorne v. State, 496 So. 2d 891 (Fla. 2d DCA 1986). Accordingly, we affirm the appealed sentences as to counts I, IV, IX, and XII. And, consistent with this court’s holding in Richardson v. State, 500 So. 2d 637 (Fla. 1st DCA 1986), we reverse and remand this case to the trial court to correct the sentences to reflect that the mandatory minimum sentences for counts X and XI be served concurrently with the sentence given for count IX, and that the sentence f…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dean v. Publix Supermarkets, Inc., 438 So. 2d 1 (Fla. 1983)
- Napoleon Dowdell v. State, 500 So. 2d 594 (Fla. 1st DCA 1986)
- Bass v. State, 478 So. 2d 461 (Fla. 1st DCA 1985)
- Aikens v. State, 488 So. 2d 543 (Fla. 1st DCA 1986)
- Coleman Music & Games & Auto-Owners Ins. Co. v. Burton, 464 So. 2d 1296 (Fla. 1st DCA 1985)
- Richardson v. State, 410 So. 2d 632 (Fla. 1st DCA 1982)