MICHAEL JOSEPH NILIO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Michael Nilio appealed the denial of post-conviction relief, challenging the legality of multiple sentences and seeking to vacate his guilty plea based on ineffective assistance of counsel. The appellate court reversed and remanded, finding that several sentences constituted improper departure sentences without adequate justification and that Nilio was entitled to a hearing regarding whether his plea was entered knowingly and intelligently.
The court held that the 1987 sentences were illegal departures from the guidelines and should be vacated as Nilio is no longer subject to sentence for those offenses. The 1989 sentences constituting multiple-cell departures were improper and required resentencing with concurrent sentences limited to one-cell bumps from the original guidelines. The trial court must hold an evidentiary hearing to determine whether Nilio's guilty plea was voluntary and intelligent and whether it resulted from counsel's failure to advise him of applicable law.
[1] Sentences imposed upon revocation of probation that constitute departure sentences from the guidelines range are illegal if no contemporaneous, written reasons are given.
[2] Sentences that constitute multiple cell departures from the guidelines range are improper, and this impropriety is not cured by later making the sentences concurrent rath…
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Join FLexlaw to unlock all legal intelligence“The sentences for these offenses imposed upon revocation of probation in 1987 were greater than permissible, as they constituted departure sentences from the guidelines range and no contemporaneous, written reasons were given.”
Establishes the illegality of the 1987 sentences due to lack of written justification for guideline departures
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Join FLexlaw to unlock all legal intelligenceNilio was convicted in multiple cases and received sentences imposed upon revocation of probation in 1987 and 1989. The 1987 sentences for cases 86-77…
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PER CURIAM.
Appellant appeals the denial of post-conviction relief. He attacked several sentences as illegal and sought to vacate a guilty plea on the ground of ineffective assistance of counsel. We reverse and remand with directions.
Appellant is no longer subject to sentence for the offenses of which he was convicted in case numbers 86-7709 and 86-8373. The sentences for these offenses imposed upon revocation of probation in 1987 were greater than permissible, as they constituted departure sentences from the guidelines range and no contemporaneous, written reasons were given. The maximum lawful sentences for those offenses have long since run. See Lambert v. State, 545 So. 2d 838 (Fla.1989), which we conclude under Witt v. State, 387 So. 2d 922 (Fla.), cert. denied, 449 U.S. 1067, 101 S.Ct. 796, 66 L.Ed.2d 612 (1980), should be applied retrospectively.1
The September 1989 sentences, entered upon revocation of probation in case numbers 87-9750, 87-9952, 87-10844, 87-10920, 87-12679, 87-13796, 87-13797, and 87-14560, were improper because they constituted multiple cell departures from the guidelines range. The impropriety was not cured by later making the sentences concurrent rather than consecutive. Appellant should be resentenced for these offenses with concurrent sentences no more than a one-cell bump from the original guidelines.
The trial court should also hold an evidentiary hearing to determine whether appellant voluntarily and intelligently entered into the plea agreement that resulted in his twelve year sentence as a habitual offender for the burglary committed in 1989. The court should then determine whether appellant’s plea resulted from counsel’s failure to advise him of applicable law.
REVERSED AND REMANDED WITH DIRECTIONS.
GLICKSTEIN, C.J., GUNTHER and FARMER, JJ., concur. . In concluding that Lambert should be given retrospective application on collateral review, we have not overlooked the supreme court’s distinction in Smith v. State, 598 So. 2d 1063 (Fla.1992), between retrospective application on direct review and on collateral review. Id. at 1066, n. 5. We understand that under Smith retrospective application in collateral review cases should not be routine. We simply feel that the Lambert change is too substantial not to allow aggrieved prisoners to claim its provisions. See Rule 3.800(a), Fla.R.Crim.P. (court may correct illegal sentence at any time).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Callaway v. State, 642 So. 2d 636 (Fla. 2d DCA 1994)…ict’s decision to retroactively re-sentence prisoners whose guideline sentences were affected by Miller v. Florida, 482 U.S. 423, 107 S.Ct. 2446, 96 L.Ed.2d 351 (1987). See Brown v. State, 535 So. 2d 332 (Fla. 1st DCA 1988). See also Nilio v. State, 601 So. 2d 646 (Fla. 4th DCA 1992) (retroactive application of rule preventing departure from guidelines for violation of probation); Tafero v. State, 459 So. 2d 1034 (Fla.1984) (elimination of death penalty for felony murder is retroactive). On the other hand, ou…
Authorities Cited
- Witt v. State, 387 So. 2d 922 (Fla. 1980)
- Lambert v. State, 545 So. 2d 838 (Fla. 1989)
- Rhoda Smith v. State, 598 So. 2d 1063 (Fla. 1992)
- Adams v. Peat, 449 U.S. 1067 (U.S. 1980)
- Jarrett v. Jarrett, 449 U.S. 1067 (U.S. 1980)