JEFF BRADLEY LINDEN

v.

STATE OF FLORIDA

PER CURIAM.

We affirm the denial of Appellant’s Florida Rule of Criminal Procedure 3.800(a) motions in these consolidated cases involving sentences in three lower tribunal case numbers. We write only to address Appellant’s claim that his 15-year prison releasee reoffender (“PRR”) sentences are illegal because he committed the offenses following release from jail, not prison. See State v. Lewars, 259 So. 3d 793, 802 (Fla. 2018) (holding that under the PRR statute, “‘release from a state correctional facility operated by the Department of Corrections or a private vendor’ . . . does not include release from a county jail”).

Appellant’s convictions and sentences in these cases became final in 2016 and 2017 after the time for filing a direct appeal expired. As we previously held, “[Appellant] is not entitled to retroactive application of State v. Lewars, 259 So. 3d 793 (Fla. 2018).” Linden v. State, 342 So. 3d 231, 232 (Fla. 4th DCA 2022), rev. denied, No. SC2022-0988, 2023 WL

3139985 (Fla. Apr. 28, 2023); see also Linden v. State, 346 So. 3d 629 (Fla. 4th DCA 2022).

In Sims v. State, 286 So. 3d 292, 293–94 (Fla. 4th DCA 2019), rev. denied, No. SC19-2065, 2020 WL 1899575 (Fla. Apr. 16, 2020), we affirmed the denial of a motion to correct illegal sentence and held that Lewars is not retroactive and does not provide any basis for postconviction relief. See also Hutchins v. State, 309 So. 3d 253 (Fla. 3d DCA 2020) (affirming with citation to Sims); Herard v. State, 306 So. 3d 398 (Fla. 5th DCA 2020) (same). But see Crowell v. State, 371 So. 3d 1002, 1003 (Fla. 5th DCA 2023) (Maciver, J., concurring) (disagreeing with district cases, including Sims, holding that Lewars does not apply retroactively).

We certify that this decision conflicts with Hutchinson v. State, 363 So. 3d 1126, 1128 (Fla. 2d DCA 2023), where the appellate court retroactively applied Lewars to a 2012 sentence and reversed the denial of a rule 3.800(a) motion. Specifically, Hutchinson held that, when an illegal sentence claim under Lewars is apparent from the face of the record, such claim can be raised at any time in a rule 3.800(a) motion. Id. In so concluding, the Hutchinson court relied on Wilson v. State, 279 So. 3d 756 (Fla. 2d DCA 2019), wherein it previously held that “a challenge to a prison releasee reoffender sentence based on the supreme court’s opinion in Lewars and the plain language of section 775.082(9)(a)¹[.] ‘may be raised in a timely postconviction motion under rule 3.850 or, if it is apparent from the face of the record, in a motion pursuant to rule 3.800(a) at any time.’” Id. at 1128 (quoting Wilson, 279 So. 3d at 756).

We respectfully disagree. Lewars is not retroactive and cannot provide a basis for postconviction relief of any kind in cases where the PRR sentence became final before Lewars was decided. Retroactivity is determined by the criteria set forth in Witt v. State, 387 So. 2d 922 (Fla. 1980).1 See Sims, 286 So. 3d at 293. As we explained in Sims, under the Witt analysis, which applies to rule 3.800(a) claims, Lewars does not apply retroactively for two reasons. Id. at 293–94. “First, the Florida Supreme Court has not held that Lewars applies retroactively.” Id. Second, “Lewars is an evolutionary refinement . . . law and not a development of fundamental significance, a major constitutional change, or jurisprudential upheaval that requires retroactive application to cases on collateral review.” Id. at 294 (citation and internal quotation marks omitted). Importantly, “[r]ule 3.800(a) does not provide a substitute for retroactivity analysis.” Hester v. State, 267 So. 3d 1084, 1086 (Fla. 1st DCA 2019) (citation omitted).

In holding to the contrary, Hutchinson primarily relied on Wilson. Aside from the fact that Wilson involved a Lewars claim brought under a Florida Rule of Criminal Procedure 3.850 motion and not a rule 3.800(a) motion, the Wilson court expressly stated that “[b]ecause it is not before us in the current posture of this case, we need not reconcile how a Witt-style retroactively analysis might apply to a rule 3.800(a) claim of illegal sentence that can be raised at any time.” Wilson, 279 So. 3d at 757 n.1. Instead, the Wilson court merely affirmed the denial of defendant’s rule 3.850 motions “without prejudice to any right [defendant] may have to seek relief pursuant to rule 3.800(a) provided that he can establish that the Florida Supreme Court’s decision in Lewars renders his sentence illegal when it was imposed and can satisfy the procedural requirements of the rule.” Id. at 757.

Accordingly, we maintain our holding in Sims that Lewars cannot be applied retroactively to grant postconviction relief where the PRR sentence at issue was final before Lewars was decided.²

WARNER, DAMOORGIAN and KUNTZ, JJ., concur. * * *