GERALD HOLLIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Gerald Hollis appealed an order denying his motion to correct an allegedly illegal habitual offender sentence, arguing the state failed to provide written notice of intent to habitualize prior to sentencing as required by Florida statute. The court affirmed, holding that determining whether proper notice was served requires an evidentiary hearing and thus falls outside the scope of rule 3.800(a) motions, which are limited to sentencing issues resolvable as a matter of law.
The court affirmed the denial of Hollis's motion, holding that because the statute requires only service (not filing) of written notice, and because actual notice could constitute harmless error, an evidentiary hearing would be necessary to determine compliance. Since rule 3.800(a) motions are limited to sentencing issues resolvable as a matter of law without evidentiary determination, the trial court correctly denied the motion.
[1] A motion to correct an illegal sentence under rule 3.800(a) is limited to sentencing issues that can be resolved as a matter of law without an evidentiary determination.
[2] The absence of a notice of intent to habitualize from the court file does not conclusively establish that the notice was not served.
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Join FLexlaw to unlock all legal intelligence“A sentence that patently fails to comport with statutory or constitutional limitations is by definition 'illegal' under rule 3.800(a).”
Establishes the standard for what constitutes an illegal sentence reviewable under rule 3.800(a), citing State v. Mancino.
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Join FLexlaw to unlock all legal intelligenceIn March 1996, Hollis was convicted by jury and sentenced to five years in prison as a habitual offender. He did not appeal his conviction or sentence…
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KLEIN, J.
Appellant appeals an order summarily denying his rule 3.800(a) motion to correct an illegal sentence. He argues that his habitual offender sentence is illegal because the state failed to serve him or his attorney with written notice of intent to habitualize, prior to sentencing. We affirm.
In March, 1996, after being convicted by a jury, appellant was sentenced to five years in prison as a habitual offender. Appellant did not appeal his conviction or sentence. He has now filed this rule 3.800(a) motion to correct illegal sentence, on the ground that the state failed to comply with section 775.084(3)(b), Florida Statutes which requires written notice of intent to habitualize as follows:
Written notice shall be served on the defendant and his attorney a sufficient time prior to the entry of a plea or prior to the imposition of sentence so as to allow the preparation of a submission on behalf of the defendant.
In State v. Mancino, 714 So. 2d 429, 433 (Fla.1998), our supreme court observed that: “A sentence that patently fails to comport with statutory or constitutional limitations is by definition ‘illegal’ ” under rule 3.800(a). But also, our supreme court reiterated what it held in State v. Callaway, 658 So. 2d 983 (Fla.1995), that rule 3.800(a) motions should be limited to “sentencing issues that can be resolved as a matter of law without an evidentiary determination.” Mancino, 714 So. 2d at 432.
The statute requires the written notice to be “served” on the defendant and counsel. Because the statute only requires service, and not filing, the absence of the notice from the court file would not be determinative as to whether the notice was served as required by the statute.1 In addition, if there was actual notice, the lack of written notice can be harmless error. Massey v. State, 609 So. 2d 598, 600 (Fla.1992) and Lewis v. State, 636 So. 2d 154, 156 (Fla. 1st DCA 1994). An evidentiary hearing would thus be necessary in this case to determine whether the written notice was served or whether there was actual notice.2
Because the issue raised by appellant’s rule 3.800(a) motion could not be resolved without an evidentiary hearing, the trial court was correct in denying it. Affirmed.3
GROSS and TAYLOR, JJ., concur. . Florida Rule of Criminal Procedure 3.030(c) requires copies of papers which must be served to be filed, but the lack of filing would not violate the statute.
. We also note that in Judge v. State, 596 So. 2d 73 (Fla. 2d DCA 1991), the second district held that the notice requirement in the habitual offender statute is procedural and the lack of notice would not make a habitual offender sentence illegal for purposes of rule 3.800(a).
. We are aware of our supreme court's statement in State v. Thompson, 735 So. 2d 482, 484 (Fla.1999), that compliance with the notice requirement is "a purely legal matter discernable from the record and no contemporaneous objection is required to preserve this issue for review on direct appeal.” That statement, taken from Ashley v. State, 614 So. 2d 486 (Fla.1993), was dicta. Thompson was not arguing that his sentence was illegal, but rather that his plea was uninformed. The quote was simply included in the Thompson court’s description of Ashley, but not relevant to the issue at hand, as Justice Wells points out. Thompson, 735 So. 2d at 486 (Wells, J., concurring in part and dissenting in part).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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LEE v. State, 891 So. 2d 1136 (Fla. 4th DCA 2005)…tached. The office of the clerk of court indicates that no state response to this motion was ever filed. We nevertheless affirm, as neither ground of the motion challenging the defendant’s habitual sentence has any merit. See, e.g., Hollis v. State, 763 So. 2d 1155 (Fla. 4th DCA 2000); Boyd v. State, 880 So. 2d 726 (Fla. 2d DCA 2004); McBride v. State, 884 So. 2d 476 (Fla. 4th DCA 2004). WARNER, POLEN and SHAHOOD, JJ., concur.…
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Hastings v. Hon. Barry Krischer, 840 So. 2d 267 (Fla. 4th DCA 2003)…any time where no judge could have inflicted the sentence under any set of factual circumstances, such as when the felony was one for which the statute did not provide for habitualization at the time the offense was committed), with Hollis v. State, 763 So. 2d 1155 (Fla. 4th DCA 2000)(affirming order summarily denying rule 3.800(a) motion; claim that state failed to serve notice of intent to habitualize required evidentiary hearing, thus, motion to correct allegedly illegal sentence could not be used to resolv…
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Wilcher v. State, 7 So. 3d 639 (Fla. 4th DCA 2009)…order of denial showing that this issue was raised on direct appeal or in the prior rule 3.800(a) motion, and this court’s records indicate it was not. However, such a claim is not cognizable in a rule 3.800(a) motion, see, e.g., Hollis v. State, 763 So. 2d 1155 (Fla. 4th DCA 2000), and defendant is out of time to file a rule 3.850 motion. Affirmed. POLEN, TAYLOR and HAZOURI, JJ., concur.…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Mancino, 714 So. 2d 429 (Fla. 1998)
- State v. Callaway, 658 So. 2d 983 (Fla. 1995)
- Ashley v. State, 614 So. 2d 486 (Fla. 1993)
- Judge v. State, 596 So. 2d 73 (Fla. 2d DCA 1991)
- Massey v. State, 609 So. 2d 598 (Fla. 1992)
- State v. Thompson, 735 So. 2d 482 (Fla. 1999)
- Lewis v. State, 636 So. 2d 154 (Fla. 1st DCA 1994)