GEORGE MOBLEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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George Mobley appeals the summary denial of his Rule 3.800(a) motion challenging the legality of his sentence. The court reverses the summary denial and remands because the trial court retained jurisdiction over portions of consecutive sentences rather than over one-third of the total consecutive sentence, contrary to applicable law established in Heath v. State.
The trial court erred by retaining jurisdiction over a portion of each consecutive sentence instead of over one-third of the total consecutive sentence imposed. The summary denial of the motion is reversed and the case is remanded for the trial court to correct the sentence calculation.
[1] Failure to object to a sentencing error does not waive appellate review if the error involves a fundamental defect in the sentencing procedure.
[2] Retention of jurisdiction over a portion of a life sentence is statutorily impermissible.
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“In Heath the court held that it was error for the trial court to retain jurisdiction over a portion of each of the consecutive sentences imposed, rather than over one-third of the total of the consecutive sentences imposed citing section 947.16(3), Florida Statutes (1983).”
Establishes the controlling legal standard for calculating retention of jurisdiction in consecutive sentences
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Join FLexlaw to unlock all legal intelligenceIn 1983, Mobley was sentenced to two consecutive ninety-nine year prison sentences. The sentencing court retained jurisdiction over one-half of each s…
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PER CURIAM.
George Mobley appeals the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a).
In 1983, Mobley was sentenced to two separate, consecutive ninety-nine year prison sentences. The sentencing court retained jurisdiction over one-half of each of the sentences. The retention period was subsequently reduced to one-third of each sentence. Mobley now claims that the retention is illegal on two grounds. First, that the record fails to include the statutorily required written order. This ground is procedurally barred as Mobley should have raised this issue on direct appeal. See Styles v. State, 465 So. 2d 1369 (Fla.2d DCA 1985).
Mobley also challenges the consecutive retention of jurisdiction and contends that his sentence is illegal based on Heath v. State, 558 So. 2d 165 (Fla. 1st DCA 1990). In Heath the court held that it was error for the trial court to retain jurisdiction over a portion of each of the consecutive sentences imposed, rather than over one-third of the total of the consecutive sentences imposed citing section 947.16(3), Florida Statutes (1983).
The circuit court’s order denying the motion was written on the face of the motion. There were no attachments from the records or file to refute the appellant’s claims, nor was there any explanation in the order as to why the motion was denied. This court directed the attorney general to provide a response. A letter from the Department of Corrections is attached as an exhibit to that response. While purporting to refute the claim regarding consecutive retention periods, the letter in fact supports the appellant’s contention. It appears that the appellant’s sentence is incorrectly calculated based on the retention over a portion of each of the consecutive sentences rather than over one-third of the total of the imposed sentences.
Accordingly, we reverse the summary denial of the appellant’s motion. We remand the case to the trial court to examine the appellant’s claim regarding the consecutive retention of jurisdiction and, unless there is information contrary to the above, to enter an order correcting the appellant’s sentence in accordance with this opinion. Any aggrieved party must appeal the new order within thirty days of rendition to obtain further appellate review.
SCHOONOVER, C.J., and HALL and THREADGILL, JJ., concur.
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Judge v. State, 596 So. 2d 73 (Fla. 2d DCA 1991)…d on direct appeal. See Styles v. State, 465 So. 2d 1369 (Fla. 2d DCA 1985) (trial court’s failure to state reasons for retaining jurisdiction over a sentence can be raised as fundamental error on direct appeal, but not thereafter); Mobley v. State, 590 So. 2d 1022 (Fla. 2d DCA 1991); Morris v. State, 422 So. 2d 338 (Fla. 3d DCA 1982).…
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King v. State, 805 So. 2d 966 (Fla. 2d DCA 2001)…entire sentence. Accordingly, we remand this ease for correction of Mr. King’s sentence to reflect that jurisdiction is retained over one-third of the entire sentence imposed for armed robbery and attempted second-degree murder. See Mobley v. State, 590 So. 2d 1022 (Fla. 2d DCA 1991); Adams v. State, 435 So. 2d 953 (Fla. 2d DCA 1983). Mr. King has also raised on this appeal an argument that the trial court’s reasons for retention of jurisdiction were inadequate. That issue, however, was not argued in the hea…
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Ira M. Amazon v. State, 870 So. 2d 183 (Fla. 2d DCA 2004)…PER CURIAM. Affirmed. See Amazon v. State, 487 So. 2d 8 (Fla.1986); State v. Enmund, 476 So. 2d 165 (Fla.1985); Wright v. State, 864 So. 2d 1153 (Fla. 2d DCA 2003) (en banc); Cook v. State, 816 So. 2d 773 (Fla. 2d DCA 2002); Mobley v. State, 590 So. 2d 1022 (Fla. 2d DCA 1991). As this court did in Wright, we certify direct conflict with: Kirtsey v. State, 855 So. 2d 177 (Fla. 1st DCA 2003); Hernandez v. State, 825 So. 2d 513 (Fla. 4th DCA 2002); Bingham v. State, 813 So. 2d 1021 (Fla. 1st DCA 2002); Th…
Authorities Cited
- Styles v. State, 465 So. 2d 1369 (Fla. 2d DCA 1985)
- Heath v. State, 558 So. 2d 165 (Fla. 1st DCA 1990)