MICHAEL SMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Michael Smith appealed the summary denial of his Rule 3.800(a) motion seeking to correct an allegedly illegal sentence by arguing his two kidnapping convictions violated double jeopardy because the confinement element was inherent in his robbery convictions. The appellate court affirmed, holding that double jeopardy challenges are attacks on judgments rather than sentences and therefore cannot be raised in Rule 3.800(a) proceedings.
The court affirmed the summary denial, holding that double jeopardy challenges constitute attacks on the underlying judgment rather than the sentence and therefore cannot be addressed through Rule 3.800(a) proceedings. Additionally, the motion was time-barred under Rule 3.850 because more than two years had elapsed from when the judgment became final, and the subsequent resentencing did not restart the two-year limitation period.
[1] A double jeopardy claim challenging convictions is not cognizable under Florida Rule of Criminal Procedure 3.800(a).
[2] A motion under Florida Rule of Criminal Procedure 3.800(a) is not the appropriate remedy for a double jeopardy argument that raises factual issues underlying the judgment…
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Join FLexlaw to unlock all legal intelligence“A double jeopardy argument is a challenge to the judgment, not the sentence. It also raises factual issues underlying the judgment, which if the double jeopardy argument has merit, cannot be determined on the face of the judgment. Thus, Rule 3.800(a) does not provide an appropriate remedy.”
Establishes the core holding that double jeopardy claims cannot be raised in Rule 3.800(a) proceedings because they attack judgments, not sentences.
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Join FLexlaw to unlock all legal intelligenceSmith was sentenced on December 19, 1997, for two robbery offenses and two kidnapping offenses. He appealed, and the appellate court affirmed on Decem…
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Smith appeals from the summary denial of his motion made pursuant to Florida Rule of Criminal Procedure 3.800(a) to correct an illegal sentence.- He was sentenced on December 19, 1997, for crimes including two robbery offenses and two kidnapping offenses. In his motion, he asserts that the two kidnapping convictions violated double jeopardy because the type of confinement that was alleged and proved was inherent in the robbery offenses. We affirm.
A double jeopardy argument is a challenge to the judgment, not the sentence. It also raises factual issues underlying the judgment, which if the double jeopardy argument has merit, cannot be determined on the face of the judgment. Thus, Rule 3.800(a) does not provide an appropriate remedy. Bryant v. State, 800 So. 2d 692 (Fla. 5th DCA 2001), rev. denied, 819 So. 2d 133 (Fla.2002) (claim that conviction for escape was improper because defendant was not under state confinement is an attack on the underlying judgment, not on the sentence, so Rule 3.800(a) relief is not available); State v. Moten, 698 So. 2d 1345 (Fla. 5th DCA 1997), rev. denied, 799 So. 2d 218 (Fla.2001) (defendant’s claim that he sold a controlled substance within 200 feet of public housing, not a public park as indicated in the judgment, is actually an attack on the conviction and is not cognizable under Rule 3.800(a)); Sanders v. State, 621 So. 2d 723 (Fla. 5th DCA 1993), rev. denied, 629 So. 2d 135 (Fla.1993) (double jeopardy challenge in a Rule 3.800(a) motion which is actually an attack on convictions cannot be addressed in a Rule 3.800(a) motion and would be time barred under Rule 3.850); State v. Spella, 567 So. 2d 1051 (Fla. 5th DCA 1990). (double jeopardy claim is a challenge to the conviction, not the sentence, and is inappropriate for a Rule 3.800 proceeding.)
Nor can Smith’s motion be deemed to be one seeking relief under Rule 3.850, because it would be time barred.1 Smith was sentenced on December 19, 1997. He appealed and this court affirmed on December 15, 1998. More than two years have lapsed from the date his judgment became final before he filed this motion on July 12, 2004, under the “mail box” rule.2
Smith also alleged that he had been resentenced on February 17, 2002, pursuant to Heggs v. State, 759 So. 2d 620 (Fla. 2000). However, the resentencing did not affect the finality of his judgment. See Zeigler v. State, 632 So. 2d 48, 50 (Fla.1993) (although defendant’s death penalty was vacated in 1988, the two-year period for attacking judgment by a 3.850 motion expired on January 1, 1987); Kissel v. State, 757 So. 2d 631 (Fla. 5th DCA 2000) (although defendant was resentenced pursuant to a 3.800(a) motion, the two-year limitation period for issues raised in a 3.850 motion attacking the judgment commenced when the judgment became final, not when defendant was resentenced); Romahn v. State, 743 So. 2d 104 (Fla. 5th DCA 1999) (a 3.850 motion which attacks an original plea must be filed within two years of when that plea became final, not after defendant is sentenced upon a revocation of probation).
AFFIRMED.
THOMPSON and PLEUS, JJ., concur. . See Fla. R. Crim P. 3.850(b).
. See Haag v. State, 591 So. 2d 614 (Fla.1992).
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Citator
Cited By (13 total)
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Lowery v. State, 914 So. 2d 455 (Fla. 5th DCA 2005)…PER CURIAM. AFFIRMED. See Smith v. State, 886 So. 2d 336 (Fla. 5th DCA), cause dismissed, 902 So. 2d 792 (Fla.2004). THOMPSON, MONACO and TORPY, JJ., concur.…
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Mauldin v. State, 9 So. 3d 25 (Fla. 4th DCA 2009)…e jeopardy challenge to his sentences if the illegality of the sentence is apparent from the face of the record. See Henry v. State, 920 So. 2d 1204 (Fla. 4th DCA 2006). See also Coughlin v. State, 932 So. 2d 1224 (Fla. 2d DCA 2006); Smith v. State, 886 So. 2d 336 (Fla. 5th DCA 2004). The factual basis for Mauldin’s plea is not disputed and it is clear from the face of the record. The only cognizable issue in this case is whether he could receive consecutive sentences. Section 775.021(4)(a), Florida Statutes…
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Tomika Henry v. State, 920 So. 2d 1204 (Fla. 4th DCA 2006)…aim cannot be raised in a 3.800(a) motion because the claim attacks the convictions, not the sentences, and because the claim cannot be determined from the face of the record. See Safrany v. State, 895 So. 2d 1145 (Fla. 2d DCA 2005); Smith v. State, 886 So. 2d 336 (Fla. 5th DCA 2004). We note that the situation would be different if the double jeopardy challenge was directed at the sentences and if the claim could be determined from the face of the record. See Hopping v. State, 708 So. 2d 263 (Fla.1998) (ho…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Heggs v. State, 759 So. 2d 620 (Fla. 2000)
- State v. Thurston McCLAIN, 591 So. 2d 614 (Fla. 1992)
- Haag v. State, 591 So. 2d 614 (Fla. 1992)
- Zeigler v. State, 632 So. 2d 48 (Fla. 1993)
- Sanders v. State, 621 So. 2d 723 (Fla. 5th DCA 1993)
- State v. Spella, 567 So. 2d 1051 (Fla. 5th DCA 1990)
- Bryant v. State, 800 So. 2d 692 (Fla. 5th DCA 2001)
- State v. Moten, 698 So. 2d 1345 (Fla. 5th DCA 1997)
- Kissel v. State, 757 So. 2d 631 (Fla. 5th DCA 2000)
- Romahn v. State, 743 So. 2d 104 (Fla. 5th DCA 1999)