THOMAS P. MCCABE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Thomas McCabe challenged his mandatory minimum sentence for cocaine trafficking, arguing it was illegally imposed under an unconstitutional statute. The Florida Second District Court of Appeal reversed the trial court's denial of his Rule 3.800(a) motion and remanded for resentencing, holding that the re-enacted sentencing provisions cannot be applied retroactively due to ex post facto concerns.
McCabe presented a facially sufficient claim that his mandatory minimum sentence was illegally imposed. The trial court erred in denying his motion based on the assumption that the re-enactment cured the constitutional defect retroactively. The court reversed and remanded, instructing that if McCabe's claim is correct, he must be resentenced under the 1997 version of the statute.
[1] A claim that a mandatory minimum sentence was illegally imposed is cognizable in a motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a) if the error is ap…
[2] Chapter 99-188, Laws of Florida, which provided for mandatory minimum prison sentences for certain drug offenses, was found unconstitutional for violating the single subj…
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Join FLexlaw to unlock all legal intelligence“A claim that a mandatory minimum sentence was illegally imposed is cognizable in a rule 3.800(a) motion where the error is apparent on the face of the record.”
Establishes that McCabe's challenge to his mandatory minimum sentence was properly brought and reviewable under the applicable procedural rule.
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Join FLexlaw to unlock all legal intelligenceMcCabe pleaded guilty to trafficking in more than 28 but less than 200 grams of cocaine in December 1999. The trial court imposed a three-year mandato…
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FULMER, Judge.
Thomas P. McCabe challenges the order of the trial court denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse the trial court’s order and remand for further proceedings.
In his motion, McCabe alleged that he pleaded to trafficking in more than 28 but less than 200 grams of cocaine. He further alleged that the three-year mandatory minimum term of imprisonment imposed by the trial court pursuant to section 893.135(l)(b)(l)(a), Florida Statutes (1999), is illegal based on our opinion in Taylor v. State, 818 So. 2d 544 (Fla. 2d DCA), review dismissed, 821 So. 2d 302 (Fla.2002). A claim that a mandatory minimum sentence was illegally imposed is cognizable in a rule 3.800(a) motion where the error is apparent on the face of the record. See Sims v. State, 838 So. 2d 658 (Fla. 2d DCA 2003); Leath v. State, 805 So. 2d 956 (Fla. 2d DCA 2001).
Taylor held that chapter 99-188, Laws of Florida, which provided for the imposition of mandatory minimum prison sentences for certain drug offenses, is unconstitutional because it violates the single subject rule of the Florida Constitution. In denying the motion, the trial court found: “As of April 29, 2002, the Florida Legislature has cured the single subject rule violation by re-enacting the provisions originally contained in Chapter 99-188. The re-enactment was retroactive to July 1, 1999.” However, in Green v. State, 839 So. 2d 748 (Fla. 2d DCA 2003), this court has since held that the reenactment of the sentencing provisions of chapter 99-188 cannot be applied retroactively because this would violate the Ex Post Facto Clauses of the United States and Florida Constitutions.
McCabe alleged that he committed the offense of trafficking in cocaine in December 1999, which is within the Taylor window. See Green, 839 So. 2d at 750 n. 1. Therefore, McCabe has presented a facially sufficient claim. See Sims, 838 So. 2d 658. We reverse the order of the trial court and remand for further consideration of McCabe’s claim. If McCabe is correct that the trial court imposed a mandatory minimum pursuant to section 893.135(l)(b)(l)(a) where the offense was committed within the Taylor window, the trial court shall resentence him under the 1997 version of that statute. See Green, 839 So. 2d 748. We certify conflict with the Fourth and Fifth District cases with which we disagreed in Green.
Reversed and remanded with instructions.
WHATLEY and SALCINES, JJ, Concur.
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Fillyaw v. State, 853 So. 2d 590 (Fla. 5th DCA 2003)…relief. See Barber v. State, 849 So. 2d 361, 862 (Fla. 2d DCA 2003) (“A claim that a mandatory minimum sentence was illegally imposed is cognizable in a rule 3.800(a) motion where the error is apparent on the face of the record.”); McCabe v. State, 844 So. 2d 703 (Fla. 2d DCA 2003); Sims v. State, 838 So. 2d 658 (Fla. 2d DCA 2003); Leath v. State, 805 So. 2d 956 (Fla. 2d DCA 2001). Nevertheless, although I believe that Hersey, Carlson, and Jones II were wrongly decided and an ex post facto violation has occ…
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Pena v. State, 853 So. 2d 1120 (Fla. 5th DCA 2003)…granted. See Barber v. State, 849 So. 2d 361, 362 (Fla. 2d DCA 2003) (“A claim that a mandatory minimum sentence was illegally imposed is cognizable in a rule 3.800(a) motion where the error is apparent on the face of the record.”); McCabe v. State, 844 So. 2d 703 (Fla. 2d DCA 2003); Sims v. State, 838 So. 2d 658 (Fla. 2d DCA 2003); Leath v. State, 805 So. 2d 956 (Fla. 2d DCA 2001). Nevertheless, although I believe that Hersey and Carlson were wrongly decided and an ex post facto violation has occurred here,…
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Adalberto Tovar v. State, 872 So. 2d 424 (Fla. 2d DCA 2004)…indow.1 Pursuant to Green v. State, 839 So. 2d 748 (Fla. 2d DCA 2003), if Tovar committed the offense within the Taylor window, the trial court is required to resentence him under the 1997 version of section 893.135(l)(f)(l)(a). See McCabe v. State, 844 So. 2d 703, 705 (Fla. 2d DCA 2003). The trial court denied Tovar’s motion on the basis that this court’s opinion in Taylor has prospective application only. In support of its ruling, the trial court relied on State v. Callaway, 658 So. 2d 983 (Fla. 1995), and…
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
- Taylor v. State, 818 So. 2d 544 (Fla. 2d DCA 2002)
- Green v. State, 839 So. 2d 748 (Fla. 2d DCA 2003)
- Leath v. State, 805 So. 2d 956 (Fla. 2d DCA 2001)
- Orosco v. State, 838 So. 2d 658 (Fla. 2d DCA 2003)
- Edrick Lee Hines v. State, 838 So. 2d 658 (Fla. 2d DCA 2003)