VERNON JUDE PIZANO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Fourth District Court of Appeal reversed a trial court's denial of a Rule 3.800(a) motion to correct an illegal sentence, holding that a defendant's sentencing issue is not moot even after completing the underlying sentence when that sentence is combined with consecutive sentences to calculate release date. The court remanded for re-sentencing under the 1994 guidelines.
The appellate court held that the sentencing issue is not moot because the original sentence continues to affect the defendant's release date through its combination with consecutive sentences, and therefore reversal and remand for re-sentencing under the 1994 guidelines is appropriate. The court also held that the issue was properly raised before the trial court, albeit through a reply brief after the state contested mootness.
[1] A defendant is entitled to re-sentencing under the 1994 sentencing guidelines if their offense falls within the window period and the sentence imposed under the 1995 guid…
[2] A Heggs sentencing issue is not moot when the sentence in question is combined with sentences from other cases to calculate the defendant's release date, even if the sent…
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Join FLexlaw to unlock all legal intelligence“the issue is not moot in this case because Ms sentence was combined with sentences he received in two other cases to calculate his release date.”
Establishes that the mootness doctrine does not apply when a completed sentence continues to affect release dates through consecutive sentencing calculations.
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Join FLexlaw to unlock all legal intelligencePizano was convicted of burglary of a dwelling and sentenced to 48 months in prison under the 1995 sentencing guidelines for an offense committed on N…
The full statement of facts, procedural history, and disposition for this case are member content.
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PER CURIAM.
We reverse the trial court’s order denying Appellant’s rule 3.800(a) motion to correct an illegal sentence. Appellant is entitled to re-sentencing under the 1994 guidelines pursuant to Heggs v. State, 759 So. 2d 620 (Fla.2000).
Appellant was convicted of burglary of a dwelling and sentenced under the 1995 guidelines to 48 months in prison. Appellant’s offense, which was committed November 6, 1995, is within the window period. See Trapp v. State, 760 So. 2d 924, 928 (Fla.2000). He alleges that under the 1994 guidelines, the permissible sentencing range is 19.8 to 33 months. The sentence he received in this case, 48 months in prison, exceeds the 1994 range. See Heggs.
The state claims that the Heggs issue is moot because Appellant has already completed his sentence. See Edwards v. State, 765 So. 2d 222 (Fla. 2d DCA 2000)(Heggs issue is moot based on the defendant’s release from incarceration); Prado v. State, 755 So. 2d 178 (Fla. 2d DCA 2000)(the sentencing issue was moot because the defendant had completed his sentence and was released). However, the issue is not moot in this case because Ms sentence was combined with sentences he received in two other cases to calculate his release date. It is undisputed that while he was serving his sentence in this case, Appellant was convicted and sentenced on two other cases. In those cases, he was sentenced to 40 months in prison to be served concurrent with each other but consecutive to his sentence in this case.
Pursuant to section 944.275(2)(b), Florida Statutes, the Department of Corrections combined - the 48 month sentence with the 40 month sentences to calculate his release date. As a result, although he completed the sentence in the 1995 case, it continues to affect his release date. The state does not refute Appellant’s claim that if he was re-sentenced under the 1994 guidelines and his release date was re-calculated, he would be entitled to immediate release.
The state argues that this issue should not be addressed by this court because it was not presented to the trial court.
The record reflects that Appellant’s 3.800(a) motion was received by the circuit court clerk on April 12, 2002.
The trial court directed the state to file a response on April 18, 2002.
On June 10, 2002, Appellant filed a notice to the court, informing the court that as of June 14, 2002, he would have completed his lawful sentence and he would be illegally held by the Department of Corrections. The state filed its response on June 14, 2002, arguing the issue was moot.
The trial court, on June 19, 2002, denied Appellant’s motion as moot.
On June 20, 2002, Appellant filed a reply to the state’s response and explained that the sentencing issue was not moot because it was still affecting his release date in a consecutive case. There was no reason for Appellant to have raised the issue other than by reply to the state’s response. We, therefore, conclude that the issue was raised in the trial court, albeit not addressed.
Because Appellant appears to have stated a legally sufficient claim, we reverse and remand with directions to re-sentence Appellant on case number 95-11500CF A02, pursuant to Heggs.
GUNTHER, STONE, and TAYLOR, JJ., concur.
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Citator
Cited By
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Matthews v. State, 854 So. 2d 238 (Fla. 4th DCA 2003)…ing that Tripp credit is not applicable to habitual felony offender sentence). This court has determined that a prisoner is entitled to correct a credit for time served in an earlier case that impacts a subsequent release date. See Pizano v. State, 829 So. 2d 396 (Fla. 4th DCA 2002). In Pizano, the appellant had completed his 1995 sentence when he argued that he was entitled to be re-sentenced under the 1994 guidelines pursuant to Heggs v. State, 759 So. 2d 620 (Fla.2000). The state argued that the issue was…
Authorities Cited
- Heggs v. State, 759 So. 2d 620 (Fla. 2000)
- Xzavier Trapp v. State, 760 So. 2d 924 (Fla. 2000)
- Edwards v. State, 765 So. 2d 222 (Fla. 2d DCA 2000)
- West v. State, 755 So. 2d 178 (Fla. 1st DCA 2000)
- Tucker v. State, 755 So. 2d 178 (Fla. 1st DCA 2000)