WILLIE MODEST, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that the defendant's habitual violent felony offender sentence is permissible and that the Apprendi and Blakely decisions are not retroactive.
The defendant was sentenced as a habitual violent felony offender in 1992. He filed a post-conviction motion arguing his sentence was impermissible un…
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COPE, J.
Willie Modest appeals an order denying his motion to correct illegal sentence. We affirm.
Defendant-appellant Modest was sentenced as a habitual violent felony offender (“HVO”) in 1992. In this postcon-viction motion the defendant asserts that his sentence as an HVO is impermissible under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, — U.S. -, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Those decisions are inapplicable to the defendant’s case. We have held that the decision in Blakely is not retroactive. Burgal v. State, 888 So. 2d 702 (Fla. 3d DCA 2004); see McBride v. State, 884 So. 2d 476, 478 (Fla. 4th DCA 2004).
The United States Supreme Court’s recent decision in Schriro v. Summerlin, — U.S. -, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004), held that the decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) is not retroactive. A majority of the Florida Supreme Court has also ruled that Ring is not retroactive. Monlyn v. State, No. SC02-1729, 894 So. 2d 832, 2004 WL 2797191 (Fla. Dec.2, 2004). As Ring is an application of the rule in Apprendi see Schriro, 124 S.Ct. at 2521-22, it follows that Apprendi is likewise not retroactive. See also Hughes v. State, 826 So. 2d 1070 (Fla. 1st DCA 2002), review granted, 837 So. 2d 410 (Fla.2003); Figarola v. State, 841 So. 2d 576 (Fla. 4th DCA 2003), discretionary review stayed, No. SC03-586 (Fla. Sept. 4, 2003) (stayed pending disposition of Hughes v. State).
Finally, even if Apprendi were retroactive (which it is not), Apprendi does not invalidate adjudications under Florida’s habitual violent felony offender statute. See Jackson v. State, 802 So. 2d 387 (Fla. 3d DCA 2001); Saldo v. State, 789 So. 2d 1150 (Fla. 3d DCA 2001); Robbinson v. State, 784 So. 2d 1246 (Fla. 3d DCA 2001).
Affirmed.
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Cited By
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Osborn v. State, 915 So. 2d 189 (Fla. 3d DCA 2005)…S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The decision in Blakely is inapplicable to the defendant’s case, because the defendant’s sentence became final prior to the announcement of Blakely, and Blakely is not retroactive. See Modest v. State, 892 So. 2d 566, 567 (Fla. 3d DCA 2005). The defendant’s claim under Apprendi is without merit. “[T]he Apprendi decision does not apply to the adjudication of a defendant as a habitual offender under [*191] the Florida habitual offender statute.” Ashley v. State,…
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Rudolph v. Orange, 898 So. 2d 1185 (Fla. 3d DCA 2005)…e have held that the decision in Blakely is not retroactive. Burgal v. State, 888 So. 2d 702 (Fla. 3d DCA 2004); see McBride v. State, 884 So. 2d 476, 478 (Fla. 4th DCA 2004). Likewise, we have held that Apprendi is not retroactive; Modest v. State, 892 So. 2d 566 (Fla. 3d DCA 2005). Affirmed.…
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Curry v. State, 898 So. 2d 1212 (Fla. 3d DCA 2005)…PER CURIAM. Affirmed. Modest v. State, 892 So. 2d 566 (Fla. 3d DCA 2005).…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (15 total)
- Apprendi v. New Jersey, 530 U.S. 466 (U.S. 2000)
- Ring v. Arizona, 536 U.S. 584 (U.S. 2002)
- Blakely v. Washington, 542 U.S. 296 (U.S. 2004)
- Schriro v. Summerlin, 542 U.S. 348 (U.S. 2004)
- McBRIDE v. State, 884 So. 2d 476 (Fla. 4th DCA 2004)
- Westerheide v. State, 888 So. 2d 702 (Fla. 5th DCA 2004)
- Burgal v. State, 888 So. 2d 702 (Fla. 3d DCA 2004)
- Saldo v. State, 789 So. 2d 1150 (Fla. 3d DCA 2001)
- Graddy Robbinson v. State, 784 So. 2d 1246 (Fla. 3d DCA 2001)
- Broderick W. Monlyn v. State, 894 So. 2d 832 (Fla. 2004)