CHARLES B. FUSTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Charles B. Fuston appeals the denial of his motion to correct an illegal sentence, arguing his 30-year habitual violent felony offender sentence for burglary lacked written reasons for departure and exceeded guidelines. The court affirmed, holding that habitual offender sentences are exempt from sentencing guidelines and the sentence falls within the statutory maximum, rendering it legal.
The sentence is not illegal because habitual offender sentences are exempt from sentencing guidelines under section 775.084(4)(e), the sentence falls within the statutory maximum authorized by law for the offense, and a departure sentence without written reasons but within statutory limits does not constitute an illegal sentence.
[1] A defendant is not entitled to successive review of a specific issue already decided against him on a prior motion.
[2] A trial court errs in denying a motion to correct an illegal sentence as successive if the issue raised was not previously decided.
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Join FLexlaw to unlock all legal intelligence“A sentence imposed under this section is not subject to s. 921.001.”
Establishes that habitual offender sentences under section 775.084(4)(e) are exempt from sentencing guidelines, making departure above guidelines permissible.
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Join FLexlaw to unlock all legal intelligenceFuston pleaded nolo contendere to burglary of an occupied building and was sentenced as a habitual violent felony offender to thirty years in prison. …
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PER CURIAM.
Charles B. Fuston appeals the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Fuston contends that his sentence as a habitual violent felony offender to thirty years in prison for burglary of an occupied structure is illegal because the trial court entered a departure sentence without giving written reasons. He contends that his sentence exceeds the sentencing guidelines for the offense and the statutory maximum.
The trial court denied Fusion’s motion as being successive of a prior motion filed by Fuston pursuant to Florida Rule of Criminal Procedure 3.850, which the court addressed on its merits and denied. The trial court attached a portion of the prior motion, the memorandum in support of the motion, and the order denying the motion.
As Fuston correctly points out in his initial brief, there is no proscription against filing successive rule 3.800(a) motions. See Burnsed v. State, 761 So. 2d 1139 (Fla. 2d DCA 2000). However, a defendant is not entitled to successive review on a rule 3.800(a) motion of a specific issue which has already been decided against him. See Price v. State, 692 So. 2d 971 (Fla. 2d DCA 1997). Nevertheless, Fuston is correct that his prior rule 3.850 motion makes no mention that the trial court failed to provide written reasons for imposing a departure sentence. The issue raised in Fuston’s rule 3.800 motion therefore technically is not the “specific issue” raised in his rule 3.850 motion. The trial court accordingly erred in denying his rule 3.800 motion as being successive.
This normally would require reversal. However, in the interest of judicial economy, we affirm because Fuston’s underlying claim is without substantive merit. See Bumsed. Fuston was sentenced as a habitual violent felony offender in 1993. In 1988, the habitual offender statute was amended to exempt it from the guidelines. See Strickland v. State, 596 So. 2d 1155, 1156 (Fla. 2d DCA 1992); see also § 775.084(4)(e) (“A sentence imposed under this section is not subject to s. 921.001.”). Hence, the fact that Fuston’s habitual offender sentence exceeds the guidelines and the trial court gave no written reasons for that does not render his sentence illegal.
Moreover, in Davis v. State, 661 So. 2d 1193 (Fla.1995), the supreme court concluded that a departure sentence without written reasons, but within the maximum period provided by law for the offense, does not amount to an “illegal” sentence as defined by rule 3.800(a). Subsequently, in State v. Mancino, 714 So. 2d 429, 433 (Fla.1998), the supreme court explained that an illegal sentence is not only one which exceeds the statutory maximum, but is also one which “patently fails to comport with statutory or constitutional limitations.”
Fuston’s sentence is not illegal under these authorities. According to Fu-ston’s own motion, he pleaded nolo conten-dere to burglary of an occupied building. If no aggravating factors were present, that offense constitutes a second-degree felony. See § 810.02(3)(c), Fla. Stat. (1993). Under section 775.084(4)(b)(2), Florida Statutes (1993), Fuston could be sentenced as a habitual violent felony offender to thirty years in prison for the offense. Since his sentence falls within this statutory maximum, and does not otherwise patently fail to comport with statutory or constitutional limitations, it is not illegal for purposes of rule 3.800(a).
Affirmed.
THREADGILL, A.C.J., and FULMER and DAVIS, JJ., Concur.
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Citator
Cited By (14 total)
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Shaw v. State, 780 So. 2d 188 (Fla. 2d DCA 2001)…in considering Shaw’s September 16, 1998, motion. While rule 3.800(a) does not prohibit successive motions, as does rule 3.850, a defendant is not entitled to successive review of a specific issue that has already been decided. See Fuston v. State, 764 So. 2d 779, 779 (Fla. 2d DCA 2000); Price v. State, 692 So. 2d 971, 971 (Fla. 2d DCA 1997); Burns v. State, 637 So. 2d 937, 937 (Fla. 2d DCA 1994). However, the trial court failed to attach Shaw’s September 16, 1998, motion or the trial court’s order on that m…
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Gibson v. State, 775 So. 2d 353 (Fla. 2d DCA 2000)…1994 guidelines, the sentence as imposed was nevertheless legal and not subject to correction under rule 3.800(a). The trial court properly denied Mr. Gibson’s rule 3.800(a) motion as facially insufficient. As this court stated in Fuston v. State, 764 So. 2d 779 (Fla. 2d DCA 2000) (quoting State v. Mancino, 714 So. 2d 429, 433 (Fla.1998)), an illegal sentence not only “exceeds the statutory maximum” but also “ ‘patently fails to comport with statutory or constitutional limitations.’ ” See also Abaunza v. St…
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Holton v. State, 51 So. 3d 1164 (Fla. 1st DCA 2010)…ssive. While rule 3.800(a) does not prohibit successive motions, a defendant is not entitled to successive review of a specific issue that has already been decided on the merits. See State v. McBride, 848 So. 2d 287, 291 (Fla.2003); Fuston v. State, 764 So. 2d 779 (Fla. 2d DCA 2000). Although the appellant has raised this claim in previous postcon-viction motions, the claim has never been addressed on the merits. See Williams v. State, 868 So. 2d 1234 (Fla. 1st DCA 2004) (“[T]he trial court erred in denying t…
Previewing 3 of 14 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)
- Davis v. State, 661 So. 2d 1193 (Fla. 1995)
- Price v. State, 692 So. 2d 971 (Fla. 2d DCA 1997)
- Wilson v. State, 692 So. 2d 971 (Fla. 2d DCA 1997)
- Strickland v. State, 596 So. 2d 1155 (Fla. 2d DCA 1992)
- Burnsed v. State, 761 So. 2d 1139 (Fla. 2d DCA 2000)