LARRY DEWAYNE HIGGINS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Higgins appeals the summary denial of his Rule 3.850 motion (ineffective assistance of counsel claim). The appellate court reverses and remands, finding that Higgins has stated a facially sufficient Rule 3.800(a) claim regarding alleged defects in his habitual offender sentencing that must be addressed on the merits rather than dismissed as untimely.
The trial court erred in summarily denying the motion as untimely without addressing the merits. The court must address on remand whether the firearm charges were nol-prossed (which would deprive the sentencing court of jurisdiction) and whether Higgins' original probation sentence as a habitual offender was illegal absent a negotiated plea.
[1] A claim that charges were nol-prossed must be addressed on its merits, even if the trial court deemed the claim untimely, if the record supports the claim.
[2] A sentencing court lacks jurisdiction to sentence a defendant on charges that have been nol-prossed.
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Join FLexlaw to unlock all legal intelligence“If these charges were nol-prossed, the sentencing court was without jurisdiction to sentence Higgins to prison on these charges.”
Establishes that nol-prossed charges divest the court of sentencing jurisdiction, a jurisdictional issue that cannot be waived by procedural default.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceOn September 20, 1990, the State filed charges against Higgins for two weapons violations. Higgins was deemed a habitual offender and placed on probat…
The full statement of facts, procedural history, and disposition for this case are member content.
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THREADGILL, Judge.
Larry Dewayne Higgins appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion. The trial court denied the claim because it was untimely. However, Higgins has stated a facially sufficient Florida Rule of Criminal Procedure 3.800(a) claim which must be addressed on its merits. In addition, the trial court is directed to address a claim not raised by Higgins, but which is apparent on the face of the record before this court. See Wilhelm v. State, 543 So. 2d 434 (Fla. 2d DCA 1989).
On September 20, 1990, the State filed an information against Higgins charging two weapons violations. Higgins appeared in court on these charges, and on a violation of probation resulting from these charges, was deemed a habitual offender by the court, and was again placed on probation. In March of 1991, Higgins was once again charged with violation of probation. He was given a thirty-year habitual offender sentence consecutive to a ten-year sentence on the weapons violations on the felon in possession of a firearm charge, and a ten-year habitual offender sentence on the carrying a concealed weapon charge.
Higgins claimed in his motion that the firearm charges were nol-prossed. If this is correct, Higgins’ probation should not have been revoked the first time. In addition, he should not have been sentenced on these charges when his probation was revoked the second time, according to Higgins. The trial court did not dispute that the charges were nol-prossed. Instead, the trial court determined that this claim was untimely.
If these charges were nol-prossed, the sentencing court was without jurisdiction to sentence Higgins to prison on these charges. See L.C. v. State, 750 So. 2d 160 (Fla. 3d DCA 2000). This information should be available in the record; this claim must be addressed on its merits.
In addition, if Higgins’ original probation was not the result of a negotiated plea, it was illegal for the court to sentence Higgins as a habitual offender after having placed him on probation at the original sentencing hearing. See Pankhurst v. State, 796 So. 2d 618 (Fla. 2d DCA 2001). If the sentencing court had jurisdiction to sentence Higgins for violation of probation, and his plea to the charges was not the result of negotiations with the State, Higgins must be resentenced according to the sentencing guidelines in effect at the time of his offenses.
Reversed and remanded.
BLUE, C.J., and DAVIS, J., Concur.
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Rosalind Virgil v. State, 884 So. 2d 373 (Fla. 2d DCA 2004)…t’s denial of the claim raised by Virgil as being without merit. However, we remand for correction three of Virgil’s sentences because it is apparent from the face of the record before this court that the sentences are illegal. See Higgins v. State, 799 So. 2d 344 (Fla. 2d DCA 2001). In circuit court case number 95-15938, Virgil pleaded guilty to possession of cocaine with intent to sell or deliver in violation of section 893.13(l)(a), Florida Statutes (1995). The trial court sentenced her as a habitual felo…
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Chantz Harper v. State, 889 So. 2d 899 (Fla. 2d DCA 2004)…d 153 (Fla. 1st DCA 2000). In this appeal the State has conceded that Harper’s sentence is illegal. Accordingly, we reverse the denial of Harper’s rule 3.800(a) motion and remand for proceedings in accordance with this opinion. See Higgins v. State, 799 So. 2d 344 (Fla. 2d DCA 2001); Wilhelm v. State, 543 So. 2d 434 (Fla. 2d DCA 1989).1 It is not clear from the record before this court whether Harper’s plea to the trafficking offense was open or was for a negotiated sentence. If he entered an open plea, on r…
Authorities Cited
- Neilsen Arelen Wilhelm v. State, 543 So. 2d 434 (Fla. 2d DCA 1989)
- Collazo v. Moore, 796 So. 2d 618 (Fla. 1st DCA 2001)
- Pankhurst v. State, 796 So. 2d 618 (Fla. 2d DCA 2001)
- Bryant Lewis v. State, 750 So. 2d 160 (Fla. 3d DCA 2000)
- L.C. v. State, 750 So. 2d 160 (Fla. 3d DCA 2000)