LEWIS EDWARD WILKINSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Lewis Wilkinson challenged his 1983 capital sexual battery sentence as illegal because the sentencing documents did not explicitly mention his parole eligibility. The court affirmed the denial of his motion, holding that the reference to the 1983 statute and the twenty-five-year minimum mandatory term was sufficient to establish his parole eligibility.
The court held that the sentencing documents were sufficient to establish Wilkinson's parole eligibility because they specifically referenced section 775.082(1) and stated the minimum mandatory of twenty-five years, which the 1983 version of the statute automatically provided.
[1] A trial court's reference to a statute mandating a minimum sentence and eligibility for parole is sufficient to indicate parole eligibility, even if not explicitly stated…
[2] A defendant sentenced under a prior version of a statute that provides for parole eligibility is not entitled to the lenity of a later amended statute that eliminates par…
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Join FLexlaw to unlock all legal intelligence“A person who has been convicted of a capital felony shall be punished by life imprisonment and shall be required to serve no less than 25 years before becoming eligible for parole”
This is the statutory language from section 775.082(1) that governed Wilkinson's 1983 sentencing and automatically established his parole eligibility.
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Join FLexlaw to unlock all legal intelligenceWilkinson pleaded nolo contendere on December 8, 1983, to three counts of capital sexual battery on a child under twelve. He was sentenced to life imp…
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SALCINES, Judge.
Lewis Edward Wilkinson challenges the trial court’s order summarily denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm.
On December 8,1983, Wilkinson pleaded nolo contendere to three counts of capital sexual battery on a child under the age of twelve. See § 794.011(2), Fla. Stat. (1983). He was sentenced pursuant to section 775.082(1), Florida Statutes (1983), which states the following:
A person who has been convicted of a capital felony shall be punished by life imprisonment and shall be required to serve no less than 25 years before becoming eligible for parole....
Wilkinson now contends that his sentence is illegal because the oral pronouncement of the trial judge and the written judgment did not include any language alluding to his eligibility for parole. This allegation is meritless because the sentencing documents specifically indicated that he was to be imprisoned for a term of natural life and stated “pursuant to Florida Statute 775.082, the defendant shall serve a minimum mandatory of TWENTY-FIVE YEARS.” (emphasis in original). The 1988 version of the statute referenced by the trial court clearly provides that he shall be eligible for parole after serving twenty-five years. Wilkinson’s sentence was automatic—the court had no discretion. See Buford v. State, 403 So. 2d 943, 954 (Fla.1981); Johnson v. State, 679 So. 2d 9 (Fla. 4th DCA 1996).
We note that in Duffy v. State, 874 So. 2d 1242 (Fla. 2d DCA 2004), this court reversed and remanded the denial of a motion to correct illegal sentence and instructed the trial court, on remand, to specifically reflect the defendant’s eligibility for parole upon completion of the twenty-five year minimum mandatory term. However, that case is distinguishable from the present case. Duffy was charged by information with one count of capital sexual battery occurring between October 2, 1993, and October 1, 1995. A jury found Duffy guilty as charged on April 24, 2001. The trial court sentenced him to life in prison without imposing the minimum mandatory twenty-five years with eligibility for parole, as required by section 775.082(1). In 1995, section 775.082 was amended to eliminate the possibility of parole for capital crimes that do not result in punishment by -death. Ch. 95-294, § 4, Laws of Fla. (effective October 1, 1995). Under the rule of lenity, Duffy was entitled to be sentenced under the 1993 version of the statute because it was more lenient. Duffy v. State, 874 So. 2d at 1243; see Cairl v. State, 833 So. 2d 312 (Fla. 2d DCA 2003); Gilbert v. State, 680 So. 2d 1132 (Fla. 3d DCA 1996). Unlike Duffy, Wilkinson was originally sentenced under the 1983 version of section 775.082(1). Therefore, Duffy is not controlling.
We conclude that the trial court’s reference to section 775.082(1) and the minimum mandatory of twenty-five years in the sentencing documents was sufficient to indicate that Wilkinson will be eligible for parole after serving twenty-five years’ imprisonment.
Affirmed.
FULMER and STRINGER, JJ„ concur.
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Rollins v. State, 75 So. 3d 393 (Fla. 4th DCA 2011)…PER CURIAM. The denial of appellant’s rule 3.800(a) motion is affirmed. The sentencing order does not state that she is ineligible for parole and her life sentence is not illegal. § 775.082(1), Fla. Stat. (1971); see also Wilkinson v. State, 889 So. 2d 110 (Fla. 2d DCA 2004). However, the trial court’s direction to the clerk not to accept further filings from appellant is reversed. Appellant was not given notice or an opportunity to be heard pursuant to State v. Spencer, 751 So. 2d 47 (Fla.1999), be…
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Hurley v. State, 145 So. 3d 882 (Fla. 2d DCA 2014)…Affirmed. See Fla. R. App. P. 9.125(f); Adaway v. State, 902 So. 2d 746 (Fla.2005); State v. Boatwright, 559 So. 2d 210 (Fla.1990); Rusaw v. State, 451 So. 2d 469 (Fla.1984); Burrows v. State, 890 So. 2d 286 (Fla. 2d DCA 2004); Wilkinson v. State, 889 So. 2d 110 (Fla. 2d DCA 2004); Dailey v. State, 501 So. 2d 15 (Fla. 2d DCA 1986). NORTHCUTT, WALLACE, and CRENSHAW, JJ., Concur.…
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Ward v. State, 244 So. 3d 1028 (Fla. 2d DCA 2018)…559 So. 2d 210 (Fla. 1990); Rusaw v. State, 451 So. 2d 469 (Fla. 1984); McDonald v. State, 133 So. 3d 530 (Fla. 2d DCA 2013); Guilford v. State, 88 So. 3d 998 (Fla. 2d DCA 2012); Hughes v. State, 22 So. 3d 132 (Fla. 2d DCA 2009); Wilkinson v. State, 889 So. 2d 110 (Fla. 2d DCA 2004); Boyd v. State, 880 So. 2d 726 (Fla. 2d DCA 2004); Brown v. State, 827 So. 2d 1054 (Fla. 2d DCA 2002); Collier v. State, 148 So. 3d 797 (Fla. 1st DCA 2014). MORRIS, SLEET, and BADALAMENTI, JJ., Concur.…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Buford v. State, 403 So. 2d 943 (Fla. 1981)
- Cairl v. State, 833 So. 2d 312 (Fla. 2d DCA 2003)
- Gilbert v. State, 680 So. 2d 1132 (Fla. 3d DCA 1996)
- Donnell Johnson v. State, 679 So. 2d 9 (Fla. 4th DCA 1996)
- Leaurenza Edwards v. State, 874 So. 2d 1242 (Fla. 1st DCA 2004)
- Duffy v. State, 874 So. 2d 1242 (Fla. 2d DCA 2004)