KEITH ALLEN SHEPHERD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Keith Shepherd appeals the summary denial of his motion to correct an illegal sentence under Florida Rule of Criminal Procedure 3.800(a). The court affirms the denial but allows Shepherd to refile three of his claims in a facially sufficient motion because the post-conviction court failed to adequately address whether the claims were facially sufficient under the rule.
The court affirms the summary denial of Shepherd's claims but permits him to refile three specific claims in a facially sufficient rule 3.800(a) motion without those refiled claims being considered successive. The court finds insufficient information in the record to determine whether the convictions were part of the same criminal episode and that the post-conviction court failed to properly address facial sufficiency.
[1] A motion to correct an illegal sentence must be facially sufficient to warrant consideration of its merits.
[2] A defendant may not be sentenced as a habitual felony offender for a capital felony.
Previewing 2 of 5 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“the post-conviction court failed to consider whether Shepherd's claim was, in fact, facially sufficient. The postconviction court addressed the merits of Shepherd's claim, concluding that Shepherd was sentenced as an HFO for count one”
Establishes that the post-conviction court erred by not first determining facial sufficiency before addressing merits
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Join FLexlaw to unlock all legal intelligenceIn 1994, Shepherd was convicted of first-degree murder, robbery, grand theft of a motor vehicle, arson, and dealing in stolen property. He was resente…
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STRINGER, Judge.
Keith Allen Shepherd appeals the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a), the supplements to his rule 3.800(a) motion, and his motion for rehearing. We affirm the summary denial of all of Shepherd’s claims. As to three of Shepherd’s claims, our affir-mance is without prejudice to Shepherd’s refiling these claims in a facially sufficient motion to correct illegal sentence filed pursuant to rule 3.800(a).
In 1994, Shepherd was originally convicted, after a jury trial, of first-degree murder (count one), robbery (count two), grand theft of a motor vehicle (count four), arson (count five), grand theft (count six), and dealing in stolen property (count seven). On direct appeal, the conviction for grand theft was vacated. Shepherd v. State, 659 So. 2d 399 (Fla. 2d DCA 1995). Pursuant to a series of motions for post-conviction relief, Shepherd was ultimately resentenced as a habitual felony offender (HFO), on November 20, 1998, for counts one, two, four, five, and seven. It appears from the portions of the record currently before this court that the sentences on counts five and seven were to run consecutive to the sentence on count one.
Shepherd originally filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. He then filed an amended motion alleging that his consecutive HFO sentences for counts five and seven were illegal because he was given a guidelines sentence as to count one and the HFO sentences running consecutive to count one would prevent him from preserving his entitlement to controlled release. This court affirmed the summary denial of Shepherd’s original rule 3.850 motion but reversed for the newly added claim to be considered as a rule 3.800(a) claim. Shepherd v. State, 890 So. 2d 333 (Fla. 2d DCA 2004).
On remand, in considering the newly added claim under rule 3.800(a), the post-conviction court failed to consider whether Shepherd’s claim was, in fact, facially sufficient. The posteonviction court addressed the merits of Shepherd’s claim, concluding that Shepherd was sentenced as an HFO for count one, thereby allowing the court to properly run his sentences for counts five and seven consecutive to count one. The postconviction court relied on section 775.021(4)(a), Florida Statutes, to conclude that it was permissible to sentence a defendant to consecutive sentences for separate crimes which occur as part of the same criminal episode. In his motion for rehearing, Shepherd correctly pointed out that if he was actually sentenced as an HFO for count one, then he was incorrectly habitualized for an offense that was a capital felony. See Parrimon v. State, 644 So. 2d 95 (Fla. 2d DCA 1994). Shepherd additionally claimed that section 775.021(4)(a) cannot be used to impose consecutive HFO sentences for offenses that occurred as part of the same criminal episode. See Murray v. State, 890 So. 2d 451 (Fla. 2d DCA 2004). Furthermore, Shepherd claimed that if he did not receive an HFO sentence as to count one, then he could not properly be sentenced as an HFO for counts five and seven when those sentences will run consecutively to his non-HFO sentence in count one. See Marion v. State, 850 So. 2d 618 (Fla. 2d DCA 2003).
There is not enough in the record before this court to determine whether Shepherd’s convictions were all part of the same criminal episode. Furthermore, as Shepherd has not alleged, nor did the trial court address, whether his claims could be determined from the face of the record, we have no way of knowing whether Shepherd might be entitled to possible relief pursuant to rule 3.800(a) as to any of the three above-mentioned claims. Accordingly, our affirmance is without prejudice to Shepherd’s raising these three claims in a facially sufficient rule 3.800(a) motion to correct illegal sentence. See Thomas v. State, 916 So. 2d 24 (Fla. 2d DCA 2005). Any such motion filed by Shepherd shall not be considered successive.
Affirmed.
SILBERMAN and CANADY, JJ., Concur.
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Shepherd v. State, 998 So. 2d 1164 (Fla. 2d DCA 2008)…n accordance with these determinations. In this set of sentences, the life sentence for murder was imposed as a habitual offender sentence. In two more written opinions, this court expressed concern with Mr. Shepherd’s sentences. Shepherd v. State, 932 So. 2d 335 (Fla. 2d DCA 2006); Shepherd v. State, 890 So. 2d 333 (Fla. 2d DCA 2004). In our opinion in 2006, we expressly explained that the sentence for first-degree murder entered in 1998 could not be treated as a habitual offender sentence. We affirmed, but…
Authorities Cited
- Keona Murray v. State, 890 So. 2d 451 (Fla. 2d DCA 2004)
- Critton v. State, 659 So. 2d 399 (Fla. 2d DCA 1995)
- Parrimon v. State, 644 So. 2d 95 (Fla. 2d DCA 1994)
- Marion v. State, 850 So. 2d 618 (Fla. 2d DCA 2003)
- Shepherd v. State, 890 So. 2d 333 (Fla. 2d DCA 2004)
- Brooks v. State, 890 So. 2d 333 (Fla. 2d DCA 2004)
- Ioan Marton v. Rouleau, 916 So. 2d 24 (Fla. 4th DCA 2005)
- Roscoe Thomas, Jr. v. State, 916 So. 2d 24 (Fla. 2d DCA 2005)