DAMON PARRISH HIPPS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court affirmed the denial of a motion to correct sentence under Rule 3.800(b)(2) because the defendant's negotiated plea was based on a specific term of years rather than the sentencing guidelines minimum, though the defendant may pursue relief under Rule 3.850 claiming involuntariness.
A negotiated plea conditioned on a specific term of years, rather than on the sentencing guidelines minimum, does not entitle a defendant to relief under Rule 3.800(b)(2) when the sentence imposed is within the statutory maximum.
[1] A negotiated guilty plea conditioned upon a specific term of years rather than upon sentencing guidelines does not qualify for relief under Rule 3.800(b)(2) when the impo…
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Join FLexlaw to unlock all legal intelligenceDamon Parrish Hipps pleaded guilty to a crime and received a sentence of 10.9 years based on a negotiated plea agreement specifying that exact term, r…
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PER CURIAM.
In this appeal from a final criminal judgment, we affirm the trial court’s denial of appellant’s motion to correct, filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), for the reason that the negotiated plea was entered based upon a specific term of years (10.9), rather than upon the minimum under the 1995 sentencing guidelines, as appellant alleged in the motion. See Vidak v. State, 793 So. 2d 27 (Fla. 2d DCA 2001) (because Vidak pleaded to a specific sentence of 200 months, which was within the statutory maximum for his crime, relief under Heggs v. State, 759 So. 2d 620 (Fla.2000), was not available under rule 3.800); Dunenas v. Moore, 762 So. 2d 1007 (Fla. 3d DCA 2000) (defendant was not entitled to Heggs relief, because his plea was not conditioned upon the guidelines, but rather to a specific term of years, and the sentence was within the statutory maximum).
This affirmance is without prejudice to appellant’s right to seek relief pursuant to Florida Rule of Criminal Procedure 3.850 under the theory that his plea was involuntary. See Jones v. State, 781 So. 2d 447 (Fla. 4th DCA 2001). In so saying, we distinguish Booker v. State, 771 So. 2d 1187 (Fla. 1st DCA 2000), review granted, SC00-2693, 791 So. 2d 1095 (Fla. June 15, 2001), because appellant, who was sentenced within the October 1, 1995 through May 24, 1997, window period, has shown that the sentence he received could not have been imposed under the 1994 sentencing guidelines.
AFFIRMED.
ERVIN, MINER and BROWNING, JJ„ CONCUR.
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Gregory Banks v. State, 887 So. 2d 1191 (Fla. 2004)…instructions: “If the appellant entered a straight up plea to the violation of probation, he is entitled to be resentenced under the 1994 guidelines; if the appellant’s sentence was negotiated, he is entitled to withdraw his plea.”); Hipps v. State, 790 So. 2d 583, 584 (Fla. 1st DCA 2001) (distinguishing Booker and noting that appellant had the right to file a 3.850 motion seeking to withdraw his plea because his sentence could not be imposed under the 1994 sentencing guidelines). In my view these decisions…
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Richardson v. State, 829 So. 2d 364 (Fla. 1st DCA 2002)…, which had been declared unconstitutional three months earlier in Heggs v. State, 759 So. 2d 620 (Fla.2000). Although the appellant pled to the violation of probation, the record does not reveal that his sentence was negotiated. See Hipps v. State, 790 So. 2d 583 (Fla. 1st DCA 2001). The appellant has properly alleged that he has standing to seek relief pursuant to Heggs and that the sentence imposed could not have been imposed under the 1994 guidelines without a departure. See Trapp v. State, 760 So. 2d 924…
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Chuck S. Thompson v. State, 816 So. 2d 182 (Fla. 1st DCA 2002)…PER CURIAM. AFFIRMED. See Hipps v. State, 790 So. 2d 583 (Fla. 1st DCA 2001). BOOTH, BENTON, and VAN NORTWICK, 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
- Heggs v. State, 759 So. 2d 620 (Fla. 2000)
- Durwin D. Dunenas v. Moore, 762 So. 2d 1007 (Fla. 3d DCA 2000)
- Booker v. State, 771 So. 2d 1187 (Fla. 1st DCA 2000)
- Brown v. State, 793 So. 2d 27 (Fla. 2d DCA 2001)
- Rashan Jones v. State, 781 So. 2d 447 (Fla. 4th DCA 2001)
- Vidak v. State, 793 So. 2d 27 (Fla. 2d DCA 2001)