FELIX ALMENARES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Felix Almenares appealed the trial court's denial of his motion to correct an illegal sentence based on a three-year mandatory minimum under Chapter 99-188, which the court had previously held was retroactively cured but later receded from that position. The court reversed and remanded because the sentencing statute was unconstitutional and the defect was not retroactively cured, but held that the State must be given the option to agree to a legal sentence or withdraw from the plea agreement.
Almenares is entitled to post-conviction relief because his sentence is illegal under the reconsidered precedent, and a defendant cannot be bound by an agreement to accept an illegal sentence. However, he is not entitled to automatic resentencing; rather, the State must be given the option on remand to either agree to a legal sentence or withdraw from the plea agreement and proceed to trial on the original charges.
[1] A sentence imposed pursuant to an unconstitutional statute is illegal and subject to challenge.
[2] A defendant cannot be bound by a plea agreement to accept an illegal sentence.
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Join FLexlaw to unlock all legal intelligence“a defendant cannot be bound by an agreement to accept an illegal sentence”
Establishes that even plea agreements cannot compel acceptance of an illegal sentence
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Join FLexlaw to unlock all legal intelligenceAlmenares was convicted of conspiracy to traffic in cocaine and received a three-year mandatory minimum sentence pursuant to sentencing enhancements i…
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PALMER, J.
We grant the motion for rehearing filed by the State, withdraw our prior opinion, and issue the following in its place. Felix Almenares appeals the trial court’s summary denial of his rule 3.800(a) motion.1 In his motion, Almenares challenged the three-year mandatory minimum sentence which was imposed on his conspiracy to traffic in cocaine conviction pursuant to the sentencing enhancements set forth in Chapter 99-188 of the Florida Statutes, arguing that the sentence is illegal because Chapter 99-188 has been held unconstitutional. Because, in denying Almenares’ rule 3.800 motion, the trial court relied upon a decision from which this court has since receded, we reverse.
Initially, the trial court denied Almenares’ rule 3.800(a) motion, properly relying on this court’s decision in Hersey v. State, 831 So. 2d 679 (Fla. 5th DCA 2002), which held that the defect in Chapter 99-188 was retroactively cured. However, this court recently receded from Hersey in Jones v. State, 872 So. 2d 938 (Fla. 5th DCA 2004) and held that retroactive application of the reenacted statute was prohibited. Accordingly, Almenares’ sentence is illegal.2 However, the State argues that Almenares is not entitled to receive post-conviction relief because his sentence was entered pursuant to a plea agreement. We disagree. Even though Jones involved a plea bargained sentence, this court directed that the sentence be corrected under rule 3.800(a) because a defendant cannot be bound by an agreement to accept an illegal sentence. Nonetheless, Almenares is not entitled to automatic resentencing. If, as the State alleges, his sentence was the result of a negotiated plea agreement in which the State agreed to reduce the charges, the State must be given the option on remand to agree to a legal sentence or to withdraw from the plea agreement and proceed to trial on the original charges. See, Wallen v. State, 877 So. 2d 737, 29 Fla. L. Weekly D1059 (Fla. 5th DCA April 30, 2004); Barthel v. State, 862 So. 2d 28 (Fla. 2d DCA 2003).
We reverse the trial court’s denial of Almenares’ rule 3.800 motion and remand this matter to the trial court for further proceedings. We further certify conflict with State v. Franklin, 836 So. 2d 1112 (Fla. 3d DCA), rev. granted, 854 So. 2d 659 (Fla.2003), which held that Chapter 99-188 does not violate the single subject rule.
REVERSED and REMANDED.
SAWAYA, C.J. and PLEUS, J., concur. . See Fla. R.Crim. P. 3.800.
. The State argues that this appeal should be held in abeyance because the issues of the constitutionality of Chapter 99-188 and whether it was retroactively cured are presently pending in the Florida Supreme Court. See Green v. State, 839 So. 2d 748 (Fla. 2d DCA), rev. granted Franklin v. State, 854 So. 2d 659 (Fla.2003); State v. Franklin, 836 So. 2d 1112 (Fla. 3d DCA), rev. granted, 854 So. 2d 659 (Fla.2003). We reject this argument because there is no way of knowing how long the case will be pending before the Supreme Court.
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Valentine Rodriguez v. State, 883 So. 2d 908 (Fla. 2d DCA 2004)…. Rodriguez’s initial sentences were the result of a negotiated plea and that the State consented to the current resentencing scheme. Although Mr. Rodriguez may not be bound by his agreement to accept these illegal sentences, see Almenares v. State, 882 So. 2d 493 (Fla. 5th DCA 2004), the reversal of these sentences may vitiate the State’s intent in the agreement. Thus on remand, the State can either consent to an alternate sentencing scheme for these crimes or withdraw from the plea agreement and proceed to…
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Echevarria v. State, 296 So. 3d 543 (Fla. 5th DCA 2020)
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Gullo v. State (Fla. 5th DCA 2024)…te, on remand, shall have the option either “to agree to a legal sentence or to withdraw from the plea agreement and proceed to trial on the original charges.” Echevarria v. State, 296 So. 3d 543, 545 (Fla. 5th DCA 2020) (quoting Almenares v. State, 882 So. 2d 493, 495 (Fla. 5th DCA 2004)). AFFIRMED, in part, REVERSED, in part, and REMANDED for further proceedings consistent with this opinion. MAKAR and WALLIS, JJ., concur. LAMBERT, J., concurs specially with opinion. _____________________________ Not fin…
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
- Gende v. Fla. Dep't of Child. & Families, 836 So. 2d 1112 (Fla. 3d DCA 2003)
- Green v. State, 839 So. 2d 748 (Fla. 2d DCA 2003)
- Hersey v. State, 831 So. 2d 679 (Fla. 5th DCA 2002)
- Jones v. State, 872 So. 2d 938 (Fla. 5th DCA 2004)
- Barthel v. State, 862 So. 2d 28 (Fla. 2d DCA 2003)
- Wallen v. State, 877 So. 2d 737 (Fla. 5th DCA 2004)