ALEXANDER SUAREZ, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Alexander Suarez appealed the denial of his motion to correct an illegal sentence based on his habitual offender designation. The Florida District Court of Appeal, Third District reversed and remanded for resentencing after the State confessed error, finding that case number 91-3586 did not qualify as a prior conviction under Florida law because Suarez was on community control with a withheld adjudication when he committed the offenses at issue.
The habitual offender sentence was illegal because case 91-3586 does not qualify as a prior conviction under section 775.084(2), Florida Statutes, since Suarez was on community control with a withheld adjudication when he committed the offenses in cases 92-10836 and 92-15322. The motion was properly brought under Rule 3.800(a) and was not barred as successive.
[1] A challenge to habitual offender status based on the absence of requisite sequential felonies may be corrected as an illegal sentence under Rule 3.800(a) if the error is…
[2] A motion to correct an illegal sentence is not procedurally barred as successive if the specific challenge was not raised on direct appeal.
Previewing 2 of 5 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“[T]he adjudication of a defendant as a habitual offender when the requisite sequential felonies do not exist may be corrected as an illegal sentence pursuant to rule 3.800(a) so long as the error is apparent from the face of the record.”
Establishes the legal standard for challenging habitual offender sentences as illegal under Rule 3.800(a)
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Join FLexlaw to unlock all legal intelligenceSuarez was sentenced as a habitual offender in cases 92-10836 and 92-15322 based on prior case 91-3586. However, at the time Suarez committed the offe…
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PER CURIAM.
The defendant, Alexander Suarez, appeals from the denial of his motion to correct illegal sentence pursuant to Rule 3.800(a), Florida Rules of Criminal Procedure. We reverse based on the State’s proper confession of error. First, the State notes that at the time that the trial court ruled that the motion was procedurally barred because the defendant’s challenges to his habitual offender sentences should have been brought pursuant to rule 3.850, it did not have the benefit of Bover v. State, 797 So. 2d 1246, 1251 (Fla.2001)(“[T]he adjudication of a defendant as a habitual offender when the requisite sequential felonies do not exist may be corrected as an illegal sentence pursuant to rule 3.800(a) so long as the error is apparent from the face of the record.”).
Next, the State concedes that the trial court erred in ruling that the appellant’s motion was successive because he did not raise this particular challenge to the habit-ualization of his sentence on direct appeal.
Lastly, the State agrees with the defendant that case number 91-3586 does not qualify as a prior conviction under section 775.084(2), Florida Statutes (1991), because the defendant was serving community control, not probation, following a withhold of adjudication when he committed the offenses in case numbers 92-10836 and 92-15322. Overstreet v. State, 629 So. 2d 125 (Fla.1993); May v. State, 713 So. 2d 1087, 1088 (Fla. 2d DCA 1998); Destra v. State, 672 So. 2d 822 (Fla. 3d DCA 1995). Further, the appellant was not adjudicated guilty in 91-3586 until after he was found guilty in 92-10836. See Schneider v. State, 788 So. 2d 1073, 1074 (Fla, 2d DCA 2001)(holding that habitual violent offender sentence was proper where the defendant was on community control in a prior case when he committed the instant offenses because he had been adjudicated guilty in the prior case, unlike the defendants in Overstreet and May).
For these reasons, this case is remanded for resentencing in case numbers 92-10836 and 92-15322. However, because the defendant failed to object to the habitual offender sentences on the basis that he lacked the requisite prior sequential convictions at the time they were imposed, on remand, the State may again seek habitual offender treatment using other prior convictions, if they exist, or alternatively, seek an upward departure from the sentencing guidelines as was originally sought. Bover, 797 So. 2d at 1251; May, 713 So. 2d at 1088.
Reversed and remanded for resentencing.
Cases With Similar Vibessemantic neighbors from the corpus
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State v. Ransom Louis Collins, 985 So. 2d 985 (Fla. 2008)…dence of predicate convictions); Robinson v. State, 830 So. 2d 251 (Fla. 1st DCA 2002) (resentencing ordered where record evidence did not support a finding that the defendant had requisite sequential convictions to qualify as HFO); Suarez v. State, 808 So. 2d 1288 (Fla. 3d DCA 2002) (resentencing ordered where prior case relied on by State did not qualify as prior conviction under section 775.084, Florida Statutes); Benjamin v. State, 814 So. 2d 530 (Fla. 3d DCA 2002) (resentencing ordered because HVFO senten…
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Suarez v. State, 974 So. 2d 451 (Fla. 3d DCA 2008)…COPE, J. In an earlier postconviction appeal, this court ruled that Alexander Suarez did not qualify as a habitual violent felony offender (HVFO), and remanded for resentenc-ing. Suarez v. State, 808 So. 2d 1288 (Fla. 3d DCA 2002). On remand, the trial court resentenced defendant-appellant Suarez under the guidelines, but (at the State’s request) greatly increased the sentence. We conclude that this was impermissible. For a resentencing after an erroneous h…
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Lemon Benton v. State, 829 So. 2d 388 (Fla. 3d DCA 2002)…ender sentencing. See also Destra v. State, 672 So. 2d 822 (Fla. 3d DCA 1995) (crimes for which defendant was placed on community control after adjudication was withheld are not treated as prior convictions for sentencing purposes); Suarez v. State, 808 So. 2d 1288, 1289 (Fla. 3d DCA 2002) (offense for which defendant was placed on community control after adjudication was withheld does not qualify as a prior conviction under section 775.084(2)). Therefore, we reverse Benton’s sentence for the 1997 charges, an…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Bover v. State, 797 So. 2d 1246 (Fla. 2001)
- Overstreet v. State, 629 So. 2d 125 (Fla. 1993)
- Schneider v. State, 788 So. 2d 1073 (Fla. 2d DCA 2001)
- MAY v. State, 713 So. 2d 1087 (Fla. 2d DCA 1998)
- Destra v. State, 672 So. 2d 822 (Fla. 3d DCA 1995)