DONNELL JOHNSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Donnell Johnson appeals the summary denial of his post-conviction relief motion. The court affirmed the denial of his ineffective assistance of counsel claim as untimely but reversed the trial court's rejection of his illegal sentence claim, holding that his life sentences improperly withheld parole eligibility after the statutory 25-year mandatory minimum.
The court affirmed denial of the ineffective assistance of counsel claim as untimely but reversed the denial of the illegal sentence claim. The sentences were illegal to the extent they withheld eligibility for parole after completion of the statutory 25-year mandatory minimum, and that portion must be corrected.
[1] A motion for postconviction relief claiming ineffective assistance of counsel is untimely if filed more than two years after the judgment and sentence became final, unles…
[2] A sentence that withholds parole eligibility for a life sentence is illegal if the governing statute provides for parole eligibility after a mandatory minimum term.
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Join FLexlaw to unlock all legal intelligence“Construed together, these statutes enable an inmate to obtain parole after completion of the twenty five year mandatory minimum. The portion of the sentence withholding parole for the entire life sentence was in excess of that authorized by the legislature.”
Establishes the core holding that the trial court's blanket parole prohibition exceeded statutory authority
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Join FLexlaw to unlock all legal intelligenceJohnson was convicted of two counts of sexual battery on a child and sentenced to two consecutive terms of life imprisonment with no possibility of pa…
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GROSS, Judge.
Donnell Johnson appeals the summary denial of his motion for post conviction relief filed under Florida Rule of Criminal Procedure 3.850. We affirm in part, reverse in part and remand.
Appellant was convicted of two counts of sexual battery on a child and sentenced to two consecutive terms of life imprisonment. This court affirmed his convictions. Johnson v. State, 605 So. 2d 85 (Fla. 4th DCA 1992). For the purpose of a rule 3.850 motion, the judgment and sentence became final when the mandate issued on October 9, 1992. Huff v. State, 569 So. 2d 1247 (Fla.1990). Appellant filed his rule 3.850 motion on October 24, 1994. Nothing extended the time within which he had to seek post conviction relief. Because the motion was untimely, we affirm the trial court’s denial of that portion of the motion claiming ineffective assistance of counsel.
Johnson also argues that his life sentences are illegal, in that they provided for no possibility of parole.1 At the time, sexual battery upon a child was a capital felony punishable by life imprisonment with “no less than 25 years before becoming eligible for parole.” §§ 775.082(1), 794.011(2), Fla. Stat.(1989).2 Section 947.16(2)(g)3, Florida Statutes (1989) provided that an inmate serving a mandatory minimum sentence was entitled to an initial interview for parole consideration no sooner than 18 months prior to the expiration of the mandatory minimum portion of the sentence. Construed together, these statutes enable an inmate to obtain parole after completion of the twenty five year mandatory minimum. The portion of the sentence withholding parole for the entire life sentence was in excess of that authorized by the legislature. The plenary power of the legislature to prescribe punishment for criminal offenses cannot be abrogated by a court fashioning a sentence outside statutory provisions. State v. Coban, 520 So. 2d 40, 41 (Fla.1988). The supreme court has held that a sentence may not withhold eligibility for parole where it is provided for by statute. In Bedford v. State, 633 So. 2d 13 (Fla.1994), a defendant convicted of kidnapping was sentenced to life without eligibility for parole. Kidnapping was a first degree felony “punishable by imprisonment for a term of years not exceeding life.” § 787.01(1)(a)(2), Fla. Stat. (1989). The supreme court held that the prohibition of eligibility for parole was illegal and struck that portion of the sentence.
To the extent that the sentences in this case withhold eligibility for parole after completion of the twenty five year mandatory minimums, they are similarly illegal and must be corrected.
As to the remaining claims for post conviction relief, we find no error in the trial court’s summary denial of the motion and affirm.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
WARNER and FARMER, JJ„ concur. . As to the allegation of an illegal sentence, the motion was timely under rule 3.850(b), which provides that a motion to vacate a sentence which “exceeds the limits provided by law may be filed at any time.”
. The current sentence for a capital felony is life imprisonment with no eligibility for parole. § 775.082(1), Fla. Stat. (1995).
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S.R.A. v. State, 766 So. 2d 277 (Fla. 4th DCA 2000)…asoning for adjusting the sentence in G.R.A. In the juvenile area, the primary purpose of sentencing is remedial. See §§ 985.01, 985.02, Fla. Stat. (1999). Setting penalties for crimes is within the power of the legislature. E.g., Johnson v. State, 679 So. 2d 9, 10 (Fla. 4th DCA 1996). Given the rehabilitative component of community based sanctions, the legislature may have wanted to encourage judges to withhold adjudication by providing that when adjudication is withheld, the juvenile could remain subject…
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Wilkinson v. State, 889 So. 2d 110 (Fla. 2d DCA 2004)…ferenced by the trial court clearly provides that he shall be eligible for parole after serving twenty-five years. Wilkinson’s sentence was automatic—the court had no discretion. See Buford v. State, 403 So. 2d 943, 954 (Fla.1981); Johnson v. State, 679 So. 2d 9 (Fla. 4th DCA 1996). We note that in Duffy v. State, 874 So. 2d 1242 (Fla. 2d DCA 2004), this court reversed and remanded the denial of a motion to correct illegal sentence and instructed the trial court, on remand, to specifically reflect the defe…
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Duffy v. State, 874 So. 2d 1242 (Fla. 2d DCA 2004)…g that punishment of life imprisonment with a requirement that defendant serve no less than twenty-five years before becoming eligible for parole is an automatic sentence for capital sexual battery and the court has no discretion); Johnson v. State, 679 So. 2d 9 (Fla. 4th DCA 1996) (reversing a life sentence without the possibility of parole for capital sexual battery as in excess of that authorized by the legislature). We therefore reverse and remand for Duffy’s sentence to be corrected to reflect [*1244]…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Huff v. State, 569 So. 2d 1247 (Fla. 1990)
- State v. Coban, 520 So. 2d 40 (Fla. 1988)
- Bedford v. State, 633 So. 2d 13 (Fla. 1994)