JOHN EARL HUBBARD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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John Earl Hubbard appeals the trial court's denial of his motion to correct an illegal sentence imposed for burglary and attempted sexual battery. The appellate court affirms, finding that Hubbard's claim regarding consecutive habitual violent felony offender sentences must be pursued through a Rule 3.850 motion rather than a Rule 3.800 motion, and that his constitutional challenge to the underlying statute fails because the amendment would not have changed his sentencing status.
The consecutive sentences are legal because challenges to such sentences under Hale v. State must be brought via Rule 3.850 motion within two years of Hale becoming final, and Hubbard's Rule 3.800 motion was untimely. Additionally, Hubbard has not effectively alleged error under Johnson because the amended statute would not have changed his status as a habitual violent felony offender or the corresponding sentences.
[1] A motion to correct an illegal sentence under Rule 3.800 is not the proper vehicle to challenge consecutive habitual offender sentences imposed for crimes arising out of…
[2] A defendant may retroactively challenge sentences under Hale v. …
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“consecutive habitual offender sentences could not be imposed for multiple crimes committed during a single episode”
States the legal rule from Hale v. State that Hubbard relied upon
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Join FLexlaw to unlock all legal intelligenceOn May 15, 1989, Hubbard committed burglary of a dwelling and attempted sexual battery. A jury convicted him on June 13, 1990. The trial court sentenc…
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[*88] PER CURIAM.
John Earl Hubbard appeals the trial court’s order denying his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800. We affirm.
On June 13, 1990, a jury convicted Hubbard of burglary of a dwelling (count I) and attempted sexual battery (count II) for actions which occurred on May 15, 1989. Pursuant to sections 775.084(l)(b) and (4)(a), Florida Statutes (Supp.1988), the trial court sentenced Hubbard to ten years as a habitual violent felony offender on count I and thirty years as a habitual violent felony offender with a minimum mandatory of ten years on count II.1 The sentences were to run consecutively.
Hubbard filed his motion to correct illegal sentence on May 19, 1999. Hubbard argued that (1) his sentences were illegal because they were imposed consecutively for crimes arising out of a single episode, and (2) the sentences were illegal because they were imposed pursuant to an unconstitutional statute. In his first issue on appeal, Hubbard argues that his consecutive habitual violent felony offender sentences are illegal under Hale v. State, 630 So. 2d 521, 524-25 (Fla.1993), which held that consecutive habitual offender sentences could not be imposed for multiple crimes committed during a single episode. However, this claim is a mixed question of law and fact and must be addressed by a motion filed pursuant to Florida Rule of Criminal Procedure 3.850. See Callaway v. State, 642 So. 2d 636, 640 (Fla. 2d DCA 1994). The. trial court could not have treated Hubbard’s rule 3.800 motion as a rule 3.850 motion because it was untimely. Id. (finding that defendants could retroactively challenge their sentences under Hale within two years from the time Hale became final, which was February 9, 1994). Therefore, this issue is without merit.
In his second issue, Hubbard argues that his sentences are illegal because they were imposed under the 1989 amended version of section 775.084, which the Florida Supreme Court found unconstitutional in State v. Johnson, 616 So. 2d 1 (Fla.1993). However, Hubbard has not effectively alleged error under Johnson because chapter 89-280, Laws of Florida, which amended section 775.084, would not have changed his status as a habitual violent felony offender or the corresponding sentences. Id. at 4.
Affirmed.
PARKER, A.C.J., and WHATLEY and SALCINES, JJ., Concur. . Hubbard received this sentence after this court reversed and remanded his original sentence for forty years as a habitual violent felony offender with a minimum mandatory of fifteen years on count II. See Hubbard v. State, 582 So. 2d 824, 824 (Fla. 2d DCA 1991) (holding that the forty-year sentence exceeded the statutory maximum of thirty years).
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Jackson v. State, 803 So. 2d 842 (Fla. 1st DCA 2001)…ntly. The trial court construed Appellant’s Hale claim as a mixed question of law and fact that necessarily would require an evidentiary determination and, thus, be appropriate only under rule 3.850, not rule 3.800(a). Id. at 988; Hubbard v. State, 773 So. 2d 87 (Fla. 2d DCA 2000). The two-year window for seeking relief from a Hale sentencing error opened in August 1995 on the date of the mandate in Callaway. Dixon v. State, 730 So. 2d 265, 269 (Fla.1999). Therefore, Appellant’s September 2000 motion was pr…
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Hubbard v. State, 842 So. 2d 782 (Fla. 2003)…PER CURIAM. We originally accepted review of Hubbard v. State, 773 So. 2d 87 (Fla. 2d DCA 2000), pursuant to article V, section 3(b)(3), of the Florida Constitution. After further consideration, and in light of our recent decision in Burgess v. State, 831 So. 2d 137 (Fla.2002), we have determined that jurisdiction was improv…
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Hubbard v. State, 872 So. 2d 342 (Fla. 2d DCA 2004)…n in Hale v. State, 630 So. 2d 521 (Fla.1993). Prior to Burgess v. State, 831 So. 2d 137 (Fla.2002), this court held that Mr. Hubbard’s claim must be pursued under Florida Rule of Criminal Procedure 3.850 and not rule 3.800(a). See Hubbard v. State, 773 So. 2d 87 (Fla. 2d DCA 2000); see also Downs v. State, 870 So. 2d 46 (Fla. 2d DCA 2003). Following the supreme court’s opinion in Burgess, which permits some Hale issues to be resolved under rule 3.800(a), Mr. Hubbard again challenged his consecutive sentence…
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
- Hale v. State, 630 So. 2d 521 (Fla. 1993)
- State v. Johnson, 616 So. 2d 1 (Fla. 1993)
- Callaway v. State, 642 So. 2d 636 (Fla. 2d DCA 1994)
- Hubbard v. State, 582 So. 2d 824 (Fla. 2d DCA 1991)