TIMOTHY T. THOMAS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Timothy Thomas appealed the summary denial of his motion to correct his sentence, challenging whether he was properly classified as an habitual offender versus an habitual violent offender. The court found a discrepancy between the oral pronouncement at sentencing (habitual violent offender) and the written sentence documents (habitual offender), warranting reversal and remand for correction.
A constitutional challenge to a sentencing statute cannot be raised for the first time in a Rule 3.800(a) motion and must instead be raised at sentencing and on direct appeal. However, the discrepancy between the oral pronouncement and written sentence is a patently illegal sentence apparent on the face of the record, warranting correction because the proof requirements and classifications differ between habitual offender and habitual violent offender designations.
[1] A constitutional challenge to a sentencing statute cannot be raised for the first time in a motion to correct sentence; such challenges must be raised at sentencing and o…
[2] A motion to correct sentence under Rule 3.800(a) is limited to correcting sentences that are patently illegal on the face of the record.
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Join FLexlaw to unlock all legal intelligence“Rule 3.800(a) is limited to correcting sentences which are patently illegal on the face of the record.”
Establishes the narrow scope of Rule 3.800(a) motions and why constitutional challenges cannot be raised in such motions.
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Join FLexlaw to unlock all legal intelligenceOn August 23, 1996, Thomas was sentenced as an habitual offender on three counts: 40 years for armed robbery with a firearm, 30 years for aggravated b…
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PLEUS, J..
Thomas appeals the summary denial of his Rule 3.800(a) Motion to Correct Sentence. On August 23, 1996, the defendant was sentenced as an habitual offender on three counts. On Count I, he was sentenced to 40 years incarceration for armed robbery with a firearm or deadly weapon. On Count II, he was sentenced to 30 years incarceration for aggravated battery. On Count III, he was sentenced to 40 years incarceration for armed carjacking with a firearm or deadly weapon.
Thereafter, the defendant raised two arguments in his Rule 3.800(a) motion. First, he claimed that the habitual offender statute is unconstitutional. Whether a sentencing statute is constitutional cannot be raised for the first time in a Rule 3.800(a) motion. This type of issue, which seeks a change in the law, must be raised at sentencing and then on direct appeal. Rule 3.800(a) is limited to correcting sentences which are patently illegal on the face of the record.
The defendant’s second argument is that, although the written sentences show that he was sentenced as an habitual felony offender, the adjudication was not orally pronounced when sentence was imposed. The record shows that the state presented evidence that the defendant qualified as an habitual violent felony offender. The court announced immediately prior to imposing sentence, “First of all, I declare him to be an habitual violent offender.” It is clear in the transcript that the court intended to sentence the defendant as an habitual violent offender as to each offense. However, the written sentences only designate that the defendant is an habitual offender, and not an habitual violent offender. The proof required for these separate classifications varies, and the oral and written inconsistency is apparent on the face of the record. Cf. Chico v. State, 734 So. 2d 519 (Fla. 5th DCA 1999) (where alleged error was not apparent on the face of the sentencing documents, relief was properly denied). Although the written sentences likely contain only a scrivener’s error, the sentences show an adjudication for an habitual offender classification not pronounced or supported by the state’s proffer of evidence at sentencing. Cf. Sanchez v. State, 647 So. 2d 975 (Fla. 5th DCA 1994) (if illegal sentence is brought to court’s attention, it should be corrected even if it is unlikely to affect the amount of time defendant will be incarcerated).
The order denying relief is reversed for the limited purpose of resolving the discrepancy between the oral pronouncement and the written sentence. See Higginbotham v. State, 659 So. 2d 461 (Fla. 5th DCA 1995).
ORDER REVERSED IN PART; REMANDED.
SAWAYA and PALMER, JJ., concur.
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Citator
Cited By (32 total)
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Williams v. State, 957 So. 2d 600 (Fla. 2007)…nces under rule 3.800(a). See Berthiaume, 864 So. 2d at 1257; see also England v. State, 879 So. 2d 660 (Fla. 5th DCA 2004); Pittman v. State, 859 So. 2d 555 (Fla. 5th DCA 2003); Polite v. State, 847 So. 2d 1156 (Fla. 5th DCA 2003); Thomas v. State, 778 So. 2d 429 (Fla. 5th DCA 2001). But see Chico v. State, 734 So. 2d 519 (Fla. 5th DCA 1999) (rule 3.800 motion not cognizable because relief was not apparent on the face of the record). In Williams, the Fourth District concluded that “a mere allegation of a di…
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Berthiaume v. State, 864 So. 2d 1257 (Fla. 5th DCA 2004)…ritten judgment. See Pittman v. State, 859 So. 2d 555 (Fla. 5th DCA 2003); Greene v. State, 853 So. 2d 1114 (Fla. 1st DCA 2003); Polite v. State, 847 So. 2d 1156 (Fla. 5th DCA 2003); Cote v. State, 841 So. 2d 488 (Fla. 2d DCA 2003); Thomas v. State, 778 So. 2d 429 (Fla. 5th DCA 2001). We reverse the appealed order and remand for a determination whether the written sentences conform to the oral pronouncement. If they are the same, the court should attach the relevant portions of the record to refute Berthiau…
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Pleas v. State, 41 So. 3d 980 (Fla. 1st DCA 2010)…ase: • Florida Rule of Criminal Procedure 3.700 does not allow for postconviction relief. • Florida Rule of Criminal Procedure 3.800(a) cannot be used as a vehicle for challenging the constitutionality of a sentencing statute. See Thomas v. State, 778 So. 2d 429, 430 (Fla. 5th DCA 2001). Such challenges, which seek to change the law, must be raised at sentencing and on direct appeal. Id.; see also Allen v. Buttenuorth, 756 So. 2d 52, 54-55 (Fla.2000). • Florida Rule of Criminal Procedure 3.800(b), by its v…
Previewing 3 of 32 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Higginbotham v. State, 659 So. 2d 461 (Fla. 5th DCA 1995)
- Chico v. State, 734 So. 2d 519 (Fla. 5th DCA 1999)
- Sanchez v. State, 647 So. 2d 975 (Fla. 5th DCA 1994)