DERRICK S. ELLIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Ellis appeals his resentencing following this court's determination that his consecutive habitual offender sentences were illegal. The trial court imposed a legal sentence on remand, and Ellis contends this violated the appellate mandate by not limiting the revision to merely making sentences concurrent. The court affirms, holding that once illegal sentences are found, the defendant is entitled only to a legal sentence, not a specific sentence.
Once a defendant receives illegal sentences and an appellate court determines the illegality, the defendant is entitled to a legal sentence but not to a specific sentence. The trial court may impose any sentence that could legally have been imposed at the original sentencing, and this is within the appellate court's mandate.
[1] A defendant is entitled to a legal sentence, not a specific sentence, when an illegal sentence is vacated.
[2] A resentencing court has the authority to impose any sentence that could have been legally imposed at the original sentencing, even if the original sentence was found to…
Previewing 2 of 3 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“Once it was determined that Ellis had received illegal sentences, he was not entitled to a specific sentence but only to a legal sentence.”
Establishes the core holding that a defendant receives only the right to a legal sentence, not the right to dictate the form of that sentence.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceEllis was convicted of violent crimes in 1989. He appealed his sentences four times through the Fifth District Court of Appeal. In Ellis III, the cour…
The full statement of facts, procedural history, and disposition for this case are member content.
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GRIFFIN, J.
Derrick S. Ellis [“Ellis”] appeals his sentences, for the fourth time, for violent crimes apparently committed in 1989. The sentencing history of these convictions is chronicled in Ellis v. State, 774 So. 2d 707 (Fla. 5th DCA 2000) [“Ellis I”]; Ellis v. State, 785 So. 2d 497 (Fla. 5th DCA 2001) [“Ellis II’’]; and Ellis v. State, 826 So. 2d 488 (Fla. 5th DCA 2002) [“Ellis III”].
In Ellis III, this court considered the denial of the most recent of Ellis’ rule 3.800(a) post-conviction motions. The court concluded that the claim raised in the motion — that the consecutive habitual offender sentences imposed for the three crimes were illegal — was cognizable as an “illegal sentence” under rule 3.800(a) and that the motion was not barred as successive based upon this court’s decision in McBride v. State, 810 So. 2d 1019 (Fla. 5th DCA 2002).1
On remand, the court decided that the consecutive sentences were illegal and Ellis had to be resentenced. The State urged the court to carry out the evident intent of the original sentence as closely as possible by giving Ellis a guidelines sentence, which, given his score, the State asserted would be life imprisonment. Ellis objected that in Ellis III, we did not authorize any revision in the sentence beyond elimination of “consecutive sentences.” According to Ellis, to do other than impose three concurrent sentences of thirty years would violate this court’s mandate.
We disagree. Ellis claimed his sentences were illegal for a specific reason. This court agreed that he was entitled to have his claim of illegality considered on the merits. Once it was determined that Ellis had received illegal sentences, he was not entitled to a specific sentence but only to a legal sentence. At the resentencing, no one suggested that the sentence imposed was not a sentence that could legally have been imposed at his original sentencing. The trial court’s imposition of a legal sentence after deciding that consecutive habitual offender sentences were illegal was entirely within this court’s mandate.2 See Trotter v. State, 825 So. 2d 362 (Fla.2002); Wood v. State, 582 So. 2d 751 (Fla. 5th DCA 1991).
AFFIRMED.
SAWAYA, C.J., and MONACO, J„ concur. . At the time of this court’s opinion, the Supreme Court of Florida had accepted jurisdiction of McBride and subsequently quashed this court's decision. State v. McBride, 848 So. 2d 287 (Fla.2003). Because of our disposition of the case, we do not consider the effect of this outcome.
. Appellant suggests for the first time in his reply brief that the sentences imposed may not, in fact, be legal sentences, but given the limited record we have before us, we cannot tell whether this is so.
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Citator
Cited By
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Davis v. State, 884 So. 2d 1058 (Fla. 2d DCA 2004)…a new sentencing proceeding after the original sentence has been vacated by the appellate court, the trial court is not precluded from applying a drug-trafficking multiplier that it did not use in formulating the original sentence); Ellis v. State, 869 So. 2d 52, 53 (Fla. 5th DCA 2004) (“Once it was determined [on appeal] that Ellis had received illegal sentences, he was not entitled to a specific sentence but only to a legal sentence.”); Lloyd v. State, 844 So. 2d 713, 715 (Fla. 2d DCA 2003) (Altenbernd, J…
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Lawerence J. Vickers v. State, 935 So. 2d 1286 (Fla. 5th DCA 2006)…otal sentence appears to exceed ten years. Upon remand, the trial court may either resen-tence Appellant on both counts in Case No. 02^482 or provide further record support that the sentence on Count II does not exceed ten years. See Ellis v. State, 869 So. 2d 52 (Fla. 5th DCA 2004). REVERSED in part; REMANDED. SAWAYA, ORFINGER and TORPY, JJ., concur.…
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Fairrow v. State, 874 So. 2d 1205 (Fla. 5th DCA 2004)…al episode. Thus, the trial court should either have corrected the consecutive mandatory terms and imposed a legal sentence, or attached portions of the record showing that the offenses were not part of a single criminal episode. See Ellis v. State, 869 So. 2d 52 (Fla. 5th DCA 2004). Accordingly, we affirm as to the first two grounds, but remand this case to the trial judge to address ground three. AFFIRMED in part; REVERSED in part; REMANDED. THOMPSON and MONACO, JJ., concur.…
Authorities Cited
- State v. Antoine L. McBRIDE, 848 So. 2d 287 (Fla. 2003)
- Trotter v. State, 825 So. 2d 362 (Fla. 2002)
- Wood v. State, 582 So. 2d 751 (Fla. 5th DCA 1991)
- Antoine L. McBRIDE v. State, 810 So. 2d 1019 (Fla. 5th DCA 2002)
- Ellis v. State, 826 So. 2d 488 (Fla. 5th DCA 2002)