KENNETH ALLEN ANDERSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Anderson appealed the denial of his rule 3.800 motion seeking correction of an illegal sentence. The court held that a prisoner may file a rule 3.800 motion for correction of sentence at any time, and that retention of jurisdiction over a life sentence violates Florida law because one-third of a life sentence cannot be calculated.
A prisoner may file a rule 3.800 motion for correction of sentence at any time and the trial court must make such correction if justified. Retention of jurisdiction over a portion of a life sentence is illegal because one-third of a life sentence cannot be calculated under Florida Statutes section 947.16.
[1] A motion for correction of an illegal sentence may be filed at any time, and the trial court must grant the correction if justified.
[2] Retention of jurisdiction over a portion of a life sentence is not permissible under the statute.
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Join FLexlaw to unlock all legal intelligence“We believe that as a general rule a prisoner may file a rule 3.800 motion for correction of sentence at any time and that the trial court must make such correction if it is justified.”
Establishes the core holding that rule 3.800 motions are not subject to strict timeliness requirements and must be considered on the merits.
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Join FLexlaw to unlock all legal intelligenceAnderson was convicted of multiple felonies and received consecutive sentences consisting of two 99-year sentences and one life sentence. The trial co…
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PER CURIAM.
This is an appeal from denial in the trial court of a rule 3.800 motion for correction of illegal sentence. The trial court was evidently of the opinion that such motion should be denied when there has been an affirmance of judgment and sentence on direct appeal, and a summarily denied rule 3.850 motion, never appealed from, in which substantially the same issue was raised. It appears from the record that the rule 3.850 motion in this appellant’s case was denied because it was untimely filed, having been filed approximately four days after the time provided for in that rule had run. Thus the instant issue was never considered on its merits.
We believe that as a general rule a prisoner may file a rule 3.800 motion for correction of sentence at any time and that the trial court must make such correction if it is justified. Cf. State v. Chaplin, 490 So. 2d 52 (Fla.1986); see Karchesky v. State, 568 So. 2d 80 (Fla. 5th DCA 1990). It is not necessary for purposes of the instant case to determine whether such a motion should be entertained when the prisoner has previously raised the same issue on direct appeal of judgment and sentence.
We think also that, inasmuch as retention of jurisdiction has been characterized as enhancement of the sentence, State v. Williams, 397 So. 2d 663, 665 (Fla.1981), such retention, if incorrect, constitutes an illegal sentence which should be corrected.
According to section 947.16(3), Florida Statutes, (1979), now section 947.16(4), “When any person is convicted of two or more felonies and consecutive sentences are imposed, then the jurisdiction of the trial court judge as provided herein shall apply to one-third of the total consecutive sentences imposed.” Case law tells us that 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 provisions only, found on the completed judgment and sentence forms, and remand with direction to the trial court to impose retention of jurisdiction for a period of sixty-six years on the aggregate of the two ninety-nine year sentences.
DELL, WARNER and POLEN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Nowlin v. State, 639 So. 2d 1050 (Fla. 1st DCA 1994)…, concur. . In Brown, supra, 633 So. 2d at 116 n. 2, Judge Altenbernd provided examples of proper uses of rule 3.800(a) as follows: Pinellas v. State, 599 So. 2d 272 (Fla. 5th DCA 1992) (sentence in excess of statutory maximum); Anderson v. State, 584 So. 2d 1127 (Fla. 4th DCA 1991) (retention of jurisdiction on life sentence in excess of time allowed by statute); Owens v. State, 557 So. 2d 199 (Fla. 2d DCA 1990) (imposing more than remaining balance of a true split sentence on probation violation); Thomas v…
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MacIas v. State, 614 So. 2d 1216 (Fla. 3d DCA 1993)…iction, that portion of the sentence which retains jurisdiction in the trial court for one-third of the prison sentence imposed is clearly illegal and may be vacated on a motion to correct illegal sentence under Rule 3.800(a). See Anderson v. State, 584 So. 2d 1127 (Fla. 4th DCA 1991); cf. State v. Chaplin, 490 So. 2d 52 (Fla.1986); Thomas v. State, 611 So. 2d 1329, (Fla.3d DCA 1993). Second, we conclude, and the state does not disagree, that the reasons given by the trial court in its order retaining jurisd…
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Hayes v. State, 598 So. 2d 135 (Fla. 5th DCA 1992)…al sentence can be corrected under Rule 3.800 even when there has been an affirmance of the judgment and sentence on direct appeal and the issue has previously been raised on a 3.850 motion which was denied and never appealed. See Anderson v. State, 584 So. 2d 1127 (Fla. 4th DCA 1991).…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Williams, 397 So. 2d 663 (Fla. 1981)
- State v. Chaplin, 490 So. 2d 52 (Fla. 1986)
- Karchesky v. State, 568 So. 2d 80 (Fla. 5th DCA 1990)
- Cleve Andrew Mobley v. State, 473 So. 2d 692 (Fla. 4th DCA 1985)