ZACHARY JOHNSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Zachary Johnson appeals the dismissal of his motion to correct an illegal sentence. Although the trial court lacked proper jurisdiction to dismiss the motion while an appeal was pending, the court affirms because Johnson's motion failed to allege any ground that would render his sentence illegal under Florida Rule of Criminal Procedure 3.800(a).
The trial court erred in dismissing the motion for lack of jurisdiction under the newly amended Rule 3.800(a), which permits such motions to be filed at any time, including while an appeal is pending. However, the dismissal is affirmed because the motion itself did not contain any ground that would render the sentence illegal.
[1] A motion to correct an illegal sentence under Florida Rule of Criminal Procedure 3.800(a) may be filed at any time.
[2] Amendments to Florida Rules of Criminal Procedure 3.800 and Florida Rule of Appellate Procedure 9.600 grant lower tribunals jurisdiction to review motions filed pursuant…
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Join FLexlaw to unlock all legal intelligence“Rule 3.800 now permits a motion to correct a sentencing error under subsection (b) "within thirty days after rendition of sentence." Under subsection (a) of rule 3.800, a motion to correct an illegal sentence may be filed "at any time."”
Establishes the key distinction between the two types of sentencing motions and their respective filing deadlines under the amended rules.
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Join FLexlaw to unlock all legal intelligenceJohnson was convicted of burglary and dealing in stolen property following a jury trial in March 1997. His attorney filed a notice of appeal on May 15…
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ALTENBERND, Judge.
Zachary Johnson appeals the dismissal of his motion to correct illegal sentence. Although the trial court’s reasoning was incorrect, we affirm because the motion states no basis for relief under Florida Rule of Criminal Procedure 3.800(a).
Following a jury trial in March 1997, Mr. Johnson was apparently convicted of burglary and dealing in stolen property. His attorney filed an appeal on his behalf on May 15, 1997. On June 5, 1997, Mr. Johnson filed both a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850 and a “motion to correct an illegal sentence.” The trial court dismissed both motions on the ground that an appeal was pending in this court. In appellate case number 97-02998, we have affirmed the dismissal of the motion for posteonviction relief. The motion to correct an illegal sentence, however, requires further consideration.
Effective January 1, 1997, Florida Rule of Criminal Procedure 3.800 and Florida Rule of Appellate Procedure 9.600 were amended.
Rule 3.800 now permits a motion to correct a sentencing error under subsection (b) “within thirty days after rendition of sentence.” Under subsection (a) of rule 3.800, a motion to correct an illegal sentence may be filed “at any time.” Rule 9.600(d) was added to the appellate rules to give the lower tribunal jurisdiction to review motions filed pursuant to rule 3.800(a) while an appeal was pending. These amendments give the trial court the opportunity to correct its own sentencing errors while the case is pending on appeal, and effectively give the defendant the opportunity to preserve sentencing issues for appeal that were not preserved prior to the filing of the notice of appeal.1 See Waldron v. State, 696 So. 2d 1318 (Fla. 1st DCA 1997).
Because Mr. Johnson’s sentence was rendered after January 1, we assume that these new rules apply to his case.
Mr. Johnson’s motion does not specify whether it was filed pursuant to subsection (a) or (b). Under subsection (b), it was untimely. Under subsection (a), it was a proper motion, and the trial court erred in dismissing it for lack of jurisdiction.
Nevertheless, the motion does not contain any ground that would render the sentence illegal.
We note, however, that the motion filed pursuant to rule 3.850 alleged that Mr. Johnson received an illegal 30-year sentence for a third-degree felony. If that allegation had been incorporated into Mr. Johnson’s motion to correct an illegal sentence, we would have been required to reverse the dismissal of this motion.
Accordingly, we treat the dismissal as a summary denial of the motion and affirm without prejudice to Mr. Johnson’s filing another rule 3.800(a) motion to challenge the legality of the 30-year sentence.
Affirmed.
DANAHY, A.C.J., and BLUE, J., concur. . In addition to Florida Rule of Criminal Procedure 3.800(b), Florida Rule of Criminal Procedure 3.170(Z) now permits a defendant to file a motion to withdraw a plea within thirty days after rendition of sentence. Both of these post-sentence motions stay rendition of a sentence for purposes of filing a notice of appeal. See Fla. R.App.P. 9.020(h).
Thus, upon the timely filing of one of these motions, the trial court is now required to correct sentencing errors prior to the commencement of the appeal. These rule amendments are collectively designed to remove the appellate courts from the slow and costly process of correcting unpreserved sentencing errors on direct appeal, and to place this function immediately on the trial court that imposed the defective sentence.
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Dameion Harriel v. State, 710 So. 2d 102 (Fla. 4th DCA 1998)…not be raised for the first time on appeal but must be brought to the attention of the trial court, either at the time of sentencing or by motion to correct the sentence, pursuant to Florida Rule of Criminal Procedure 3.800(b). See Johnson v. State, 697 So. 2d 1304, 1305 (Fla. 2d DCA 1997); § 924.051, Fla. Stat. (1997); Fla.R.App.P. 9.140(b)(2)(B)(iv), (d). No such motion was filed in this case. Thus, because there was no preserved issue, the appeal should be dismissed. The appellant responded, noting that be…
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Denson v. State, 711 So. 2d 1225 (Fla. 2d DCA 1998)…rently. Although he would not have had assistance from court-appointed counsel,1 Mr. Denson could have challenged the illegal sentence at any time during the pendency of this appeal in the trial court. See Fla. R.App. P. 9.600(d); Johnson v. State, 697 So. 2d 1304 (Fla. 2d DCA 1997).2 Even if the oral/written conflict does not result in an illegal sentence, Mr. Denson could still raise this issue post-appeal pursuant to Florida Rule of Criminal Procedure 3.850 as a sentencing error “otherwise subject to colla…
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Brown v. State, 744 So. 2d 1209 (Fla. 2d DCA 1999)…ed its dismissal upon Carter v. State, 680 So. 2d 603 (Fla. 2d DCA 1996), and reasoned that it was deprived of jurisdiction to hear the motion because of a pending appeal in this court of the judgment and sentence. We reverse. In Johnson v. State, 697 So. 2d 1304 (Fla. 2d DCA 1997), this court determined that Florida Rule of Appellate Procedure 9.600(d) provides concurrent jurisdiction to trial courts during the pendency of direct appeals to correct sentencing errors, and the rule broadened the variety of th…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Arlie Waldron v. State, 696 So. 2d 1318 (Fla. 1st DCA 1997)