THE STATE OF FLORIDA, APPELLANT,
v.
FREDDY MORALES, APPELLEE
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PER CURIAM.
Affirmed. Burdick v. State, 594 So. 2d 267 (Fla.1992); State v. Eason, 592 So. 2d 676 (Fla.1992); Zequeira v. State, 671 So. 2d 279, 279 (Fla. 3d DCA 1996)(“Sentencing under the habitual offender statute as well as the imposition of minimum mandatory terms is permissive, not mandatory.”).
JORGENSON and SHEVIN, JJ., concur.
COPE, Judge
(specially concurring).
I concur that the state is not entitled to any relief on this appeal, but reach that conclusion on procedural grounds. I would vacate the order under review because the trial court was without jurisdiction to enter it.
Defendant was convicted of introduction into, removal, or possession of contraband in a state correctional institution, in violation of section 944.47, Florida Statutes (1993), a second degree felony. He was adjudicated a habitual violent felony offender. The trial court imposed a ten-year sentence with a five-year mandatory minimum term. Defendant filed an appeal.
While the appeal was pending, the state filed a motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a). The state argued that the sentence was illegal because the trial court had only imposed a five-year mandatory minimum term, instead of the ten-year mandatory minimum term for a habitual violent felony offender who has been convicted of a second degree felony. See § 775.084(4)(b), Fla. Stat. (1993). Defendant objected that the trial court was without jurisdiction to entertain the state’s motion. The trial court overruled the objection. On the merits, the court ruled that for a habitual violent felony offender, the trial court has discretion over the length of the mandatory minimum sentence. The state has appealed.
In my view the defendant was correct in saying that the trial court did not have jurisdiction because the state did not file its motion until after the notice of appeal had already been filed. See Loeb v. State, 387 So. 2d 433, 435 (Fla. 3d DCA 1980); Gorman v. State, 636 So. 2d 203 (Fla. 1st DCA 1994); see also Jordon v. State, 631 So. 2d 362 (Fla. 1st DCA 1994); Bauman v. State, 600 So. 2d 551 (Fla. 2d DCA 1992); Key v. State, 599 So. 2d 1040 (Fla. 2d DCA 1992); Dailey v. State, 575 So. 2d 287 (Fla. 2d DCA 1991); Hicks v. State, 559 So. 2d 1265 (Fla. 3d DCA 1990); Casseus v. State, 509 So. 2d 965 (Fla. 3d DCA 1987).
The Second District has held to the contrary, ruling that a trial court has concurrent jurisdiction to correct an illegal sentence under Rule 3.800(a) without a relinquishment of jurisdiction. Carter v. State, 21 Fla. L. Weekly D1459 (Fla. 2d DCA June 19, 1996); Curry v. State, 657 So. 2d 50 (Fla. 2d DCA 1995), review granted, 676 So. 2d 412 (Fla. June 25,1996); Easterling v. State, 596 So. 2d 103 (Fla. 2d DCA 1992); Barber v. State, 590 So. 2d 527 (Fla. 2d DCA 1991).
It seems to me that under the terms of Florida Rule of Appellate Procedure 9.600(b), as well as the weight of Florida authority, a relinquishment of jurisdiction was necessary in order for the trial court to entertain the state’s motion. Consequently we should vacate the trial court order as having been entered without jurisdiction.1
. On the merits, I agree that the trial court’s ruling was consistent with Zequeira v. State, 671 So. 2d 279 (Fla. 3d DCA 1996), although other districts disagree. See White v. State, 618 So. 2d 354 (Fla. 1st DCA 1993); Sims v. State, 605 So. 2d 997 (Fla. 2d DCA 1992); Martin v. State, 608 So. 2d 571 (Fla. 5th DCA 1992).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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State v. Meyers, 708 So. 2d 661 (Fla. 3d DCA 1998)…ry minimum terms under the habitual offender and habitual violent felony provisions of section 775.084 are permissive, not mandatory. See Hudson v. State, 682 So. 2d 657, 658 (Fla. 3d DCA 1996), approved, 698 So. 2d 831 (Fla.1997); State v. Morales, 678 So. 2d 510 (Fla. 3d DCA 1996). However that construction is entirely consistent with our analysis today. While the “may” as used in the habitual felony offender and habitual violent felony offender is construed as permissive, “must” and “shall” as used in the…
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Hudson v. State, 682 So. 2d 657 (Fla. 3d DCA 1996)…ce a mandatory term. Washington v. State, 662 So. 2d 1027 (Fla. 5th DCA 1995). The imposition of minimum mandatory terms under the habitual offender statute is permissive, not mandatory, so the sentence imposed is not illegal.2 See State v. Morales, 678 So. 2d 510 (Fla. 3d DCA 1996); Zequeira v. State, 671 So. 2d 279 (Fla. 3d DCA 1996). Furthermore, if the trial judge had resen-tenced the defendant to a greater term of imprisonment subsequent to the entry of a jurisdictionally permissible term, it would have…
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Moody v. State, 696 So. 2d 797 (Fla. 2d DCA 1997)…sue. White v. State, 618 So. 2d 354 (Fla. 1st DCA 1993); Lowe v. State, 605 So. 2d 505 (Fla. 5th DCA), rev. den., 613 So. 2d 6 (Fla.1992). The remaining districts adopt the view that imposition of these minimum terms is permissive. State v. Morales, 678 So. 2d 510 (Fla. 3d DCA 1996); Hill v. State, 652 So. 2d 904 (Fla. 4th DCA 1995). Affirmed. DANAHY, A.C.J., and SCHOONOVER and WHATLEY, JJ., concur.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (21 total)
- Burdick v. State, 594 So. 2d 267 (Fla. 1992)
- White v. State, 618 So. 2d 354 (Fla. 1st DCA 1993)
- Loeb v. State, 387 So. 2d 433 (Fla. 3d DCA 1980)
- Sims v. State, 605 So. 2d 997 (Fla. 2d DCA 1992)
- Easterling v. State, 596 So. 2d 103 (Fla. 2d DCA 1992)
- Cordon v. Alamo Rent-A-Car, Inc., 559 So. 2d 1265 (Fla. 3d DCA 1990)
- Martin v. State, 608 So. 2d 571 (Fla. 5th DCA 1992)
- Barber v. State, 590 So. 2d 527 (Fla. 2d DCA 1991)
- Buchanan v. State, 592 So. 2d 676 (Fla. 1992)
- State v. Eason, 592 So. 2d 676 (Fla. 1992)