ROBERT A. LYKINS, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that a condition of hard labor in a sentence is illegal and must be stricken. A motion to correct an illegal sentence is not the proper vehicle for challenging a sentence as cruel and unusual punishment.
The defendant's sentence included a condition of hard labor. The defendant challenged this condition and his sentence as cruel and unusual punishment.…
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WELLS, Judge.
This cause is before us on the State’s motion for rehearing en banc which we treat as including a motion for rehearing. See Romero v. State, 870 So. 2d 816, 818 (Fla.2004). We deny the motion for rehearing en banc, but grant rehearing, withdraw the opinion issued on April 7, 2004, and substitute the following.
We agree with defendant’s contention, and the State’s concession, that the trial court erred in denying the motion to strike the condition of hard labor imposed as part of the defendant’s sentence. Hard labor is an illegal condition of this sentence. See Holman v. State, 740 So. 2d 1258 (Fla. 3d DCA 1999). Accordingly, we remand with directions to strike that condition.
As to defendant’s constitutional attack on his sentence as violating the prohibition against cruel and/or unusual punishment, while we sympathize with the defendant’s argument that the sentence imposed was disproportionate to the crime for which he was convicted, we agree with the Fourth District’s observation in State v. Spriggs, 754 So. 2d 84, 84 (Fla. 4th DCA 2000), that “[a] rule 3.800(a) motion to correct an illegal sentence is not the proper vehicle for challenging a sentence on the basis that it violates the constitutional prohibition against cruel and unusual punishment.” Since we see no other basis on which relief may be granted, we affirm the denial of defendant’s 3.800 motion except as otherwise stated herein.
Reversed in part and remanded.
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Alphonso Shivers v. State, 96 So. 3d 1039 (Fla. 4th DCA 2012)…thout any temporal break. Whether a defendant’s sentence is disproportionate as compared to his co-defendant’s sentence is not cognizable in a rule 3.800(a) motion. See Fernandez v. State, 910 So. 2d 352 (Fla. 3d DCA 2005) (citing Lykins v. State, 894 So. 2d 302, 303 (Fla. 3d DCA 2005)). Furthermore, consecutive sentences for the two robbery counts committed in the same criminal episode were not illegal. See § 921.16, Fla. Stat. (1973) (“A defendant convicted of two or more offenses charged in the same ...…
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Fernandez v. State, 910 So. 2d 352 (Fla. 3d DCA 2005)…DCA 2004); McBride v. State, 884 So. 2d 476, 478 (Fla. 4th DCA 2004). We do not address the appellant’s claim that his sentence was disproportionate because such a claim is not cognizable on a motion to correct illegal sentence. See Lykins v. State, 894 So. 2d 302, 303 (Fla. 3d DCA 2005). Affirmed.…
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Epps v. State, 269 So. 3d 544 (Fla. 2d DCA 2019)
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Jair Ventura Romero v. State, 870 So. 2d 816 (Fla. 2004)
- Holman v. State, 740 So. 2d 1258 (Fla. 3d DCA 1999)
- State v. Spriggs, 754 So. 2d 84 (Fla. 4th DCA 2000)