JOHN MICHAEL FERENC, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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John Michael Ferenc appeals the trial court's summary denial of his motion to correct, reduce, or modify his sentence on double jeopardy grounds. The court affirms, holding that double jeopardy arguments challenging multiple convictions from a single incident constitute challenges to conviction rather than sentence, and therefore must be pursued under Rule 3.850, which is now time-barred.
Double jeopardy arguments challenging multiple convictions from a single incident constitute challenges to conviction rather than sentence and must be raised under Rule 3.850. Such challenges are now time-barred because Ferenc's judgment became final in 1984, before the January 1, 1987 deadline for filing Rule 3.850 motions. Additionally, the Carawan decision constituted an evolutionary refinement rather than a fundamental change in law and cannot be applied retroactively.
[1] A motion for correction, reduction, or modification of sentence pursuant to Rule 3.800, Fla.R.Crim.P., is not the proper vehicle to challenge a conviction.
[2] A double jeopardy argument constitutes a challenge to a conviction, not a sentence.
Previewing 2 of 5 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“Although double jeopardy arguments are frequently raised as challenges to both conviction and sentence, the crux of such an argument is that the defendant should not have been convicted of multiple offenses arising out of a single incident.”
Establishes that double jeopardy arguments challenging multiple convictions from a single incident are fundamentally challenges to conviction, not sentence.
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Join FLexlaw to unlock all legal intelligenceFerenc was convicted in August 1983 of attempted armed burglary, carrying a concealed firearm, and possession of burglary tools arising from an attemp…
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SHIVERS, Chief Judge.
Appellant, John Michael Ferenc, appeals the trial court’s summary denial of his motion for correction, reduction, or modification of sentence. We affirm for the reasons set out below.
The record on appeal indicates that appellant was convicted in August 1983 of attempted armed burglary, carrying a concealed firearm, and possession of burglary tools, all alleged to have occurred during an attempt to burglarize a house in Pensacola on March 2, 1983. Appellant was then sentenced to consecutive terms of 15, 5, and 5 years. His conviction on all three counts was affirmed by this court in Ferenc v. State, 455 So. 2d 432 (Fla. 1st DCA 1984). In November 1986, appellant filed a motion for post-conviction relief pursuant to Rule 3.850, Fla.R.Crim.P., raising five grounds. The trial court summarily denied the petition, and this court affirmed the denial in Ferenc v. State, 515 So. 2d 751 (Fla. 1st DCA 1987).
In February 1989, appellant filed the instant motion for correction, reduction, or modification of sentence, pursuant to Rule 3.800, Fla.R.Crim.P., alleging that his conviction and sentence for all three offenses violated the prohibition against double jeopardy, and asking the trial court to correct his illegal sentence by reducing it from 25 to 15 years for the attempted armed burglary count only. The trial court summarily denied this motion as well, without stating its reason for so doing.
Although double jeopardy arguments are frequently raised as challenges to both conviction and sentence, the crux of such an argument is that the defendant should not have been convicted of multiple offenses arising out of a single incident. See Carawan v. State, 515 So. 2d 161 (Fla.1987). Therefore, a double jeopardy argument constitutes a challenge of a conviction, rather than a sentence. Since Rule 3.800 provides only an avenue for correcting, modifying, or reducing a sentence, appellant’s post-conviction challenge to his conviction would have had to be raised via Rule 3.850, which allows a defendant to attack either sentence or conviction.
As appellant’s conviction was affirmed by this court in 1984, a Rule 3.850 motion for post-conviction relief raising the double jeopardy issue would now be untimely. See Rule 3.850, providing that a defendant whose judgment and sentence become final prior to January 1, 1985 has until January 1, 1987 to file a motion for post-conviction relief. In any event, the supreme court has recently held that the holding in Carawan v. State constituted an evolutionary refinement of decisional law rather than a fundamental change in law and, as such, may not be given retroactive application under Rule 3.850. State v. Glenn, 558 So. 2d 4 (Fla.1990).
Accordingly, the trial court’s summary denial of appellant’s motion for correction, reduction, or modification of sentence is hereby AFFIRMED.
ERVIN and NIMMONS, JJ., concur.
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Coughlin v. State, 932 So. 2d 1224 (Fla. 2d DCA 2006)…owman v. State, 586 So. 2d 454, 456 (Fla. 2d DCA 1991); Henry v. State, 920 So. 2d 1204, 1205 (Fla. 4th DCA 2006); Salazar v. State, 675 So. 2d 654, 655 (Fla. 3d DCA 1996); State v. Spella, 567 So. 2d 1051, 1051 (Fla. 5th DCA 1990); Ferenc v. State, 563 So. 2d 707, 707 (Fla. 1st DCA 1990). Because this rule is well established in Florida, we would typically affirm the postconviction court’s order per curiam. However, because Ross directly conflicts with the established rule, we write to recede from Ross. In…
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Kurtz v. State, 564 So. 2d 519 (Fla. 2d DCA 1990)…cordingly, we hold that trial courts are not permitted to enter an adjudication of guilt for an offense when a sentence could not legally be imposed under section 775.021(4), Florida Statutes (Supp.1988), for that same offense.8 Cf. Ferenc v. State, 563 So. 2d 707 (Fla. 1st DCA 1990) (“[A] double jeopardy argument constitutes a challenge of a conviction, rather than a sentence.”). But cf. Guardado v. State, 562 So. 2d 696 (Fla. 3d DCA 1990) (a nolo contendere plea precludes a double jeopardy challenge on the…
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Sanders v. State, 621 So. 2d 723 (Fla. 5th DCA 1993)…the facts of that case, but we did not decide the case on that ground. We held that double jeopardy concerns cannot be addressed in the context of Rule 3.800(a) motions. See also Plowman v. State, 586 So. 2d 454 (Fla. 2d DCA 1991); Ferenc v. State, 563 So. 2d 707 (Fla. 1st DCA 1990). Any other interpretation would provide an easy escape route around the time-bar for collateral attack on criminal judgments provided by Rule 3.850.7 In this ease, Sanders is long time-barred from raising his double jeopardy issu…
Previewing 3 of 19 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Dion Michael Carawan v. State, 515 So. 2d 161 (Fla. 1987)
- State v. Glenn, 558 So. 2d 4 (Fla. 1990)
- Ferenc v. State, 455 So. 2d 432 (Fla. 1st DCA 1984)
- Paradyne Corp. v. Irwin H. Miller and Sonya Miller, 455 So. 2d 432 (Fla. 2d DCA 1984)