HORACE DAVIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court reversed the denial of a motion to correct an illegal sentence regarding a PRR enhancement and vacated an order granting a second motion to correct sentence concerning an HFO enhancement, finding both grounds cognizable under rule 3.800(a).
The court held that both grounds for correcting the sentence were cognizable under rule 3.800(a) and reversed the denial of the first motion while vacating the order on the second motion.
[1] A trial court lacks jurisdiction to consider a motion to correct sentence while an appeal from the denial of a prior, related motion to correct sentence is pending.
[2] False imprisonment is not an enumerated felony for the purpose of prison releasee reoffender sentencing.
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Join FLexlaw to unlock all legal intelligenceThe defendant was convicted of false imprisonment and sentenced as a habitual felony offender (HFO) and prison releasee reoffender (PRR). He filed a m…
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This court previously consolidated two appeals filed by Defendant: an appeal from an order entered September 3, 2008, summarily denying his rule 3.800(a) motion to correct illegal sentence (case no. 4D09-260); and an appeal from an order entered January 13, 2009, while the first appeal was pending, granting his second rule 3.800(a) motion to correct sentence and resentencing him, and the order denying his motion for rehearing “without prejudice pending the outcome” of the first appeal (case no. 4D09-1088). We reverse the September 3 order and vacate the January 13 order.
Following a jury trial, Defendant was found guilty of false imprisonment and was sentenced as a habitual felony offender (HFO) to five years in prison, followed by five years of drug offender probation, with a five-year mandatory minimum as a prison releasee reoffender (PRR).
In August 2008, Defendant filed a rule 3.800(a) motion to correct illegal sentence in which he argued that his PRR enhancement was illegal because false imprisonment is not an enumerated felony listed in section 775.082(9)(a)l., Florida Statutes (2004). He thus asked the court to remove the PRR enhancement from his sentence. In an order entered September 3, 2008, the trial court summarily denied the mo*1025tion and Defendant filed a timely notice of appeal.
While the appeal was pending, on October 29, 2008, Defendant filed another rule 3.800(a) motion, this time challenging the imposition of both HFO and PRR sentences, where the HFO sentence did not include a greater sentence of incarceration, in that the incarcerative portions of the sentences were equal. He asked the court to vacate his sentence and resentence him. In an order entered January 13, 2009, the trial court granted Defendant’s second motion and directed the clerk of the court to delete the PRR portion of the sentence. Defendant timely moved for rehearing, citing authority that it is the HFO sentence which should be struck when a defendant is sentenced to equal terms of incarceration as a PRR and as a HFO. In an order dated and entered February 11, 2009, the trial court denied the motion for rehearing, “without prejudice pending the outcome of the Defendant’s appeal with the Fourth District Court of Appeal in Case No.: 4D09-260.” Defendant timely appealed.
Both of Defendant’s grounds are cognizable in a rule 3.800(a) motion. See Latson v. State, 882 So.2d 1091, 1092 (Fla. 1st DCA 2004) (reversing in part summary denial of rule 3.800(a) motion, as to claim that offense in question was not enumerated in the prison releasee reoffender statute); see also Johnson v. State, 927 So.2d 251, 252 (Fla. 2d DCA 2006) (holding that where the term of incarceration as a HFO did not exceed the PRR sentence, though it included a probationary term to follow, the sentence was an illegal one, correctable pursuant to rule 3.800(a)).
We reverse the trial court’s September 3, 2008 denial of the first rule 3.800(a) motion. The State’s response to this court’s order to show cause does not dispute that false imprisonment is not an enumerated felony under section 775.082(9)(a)l., Florida Statutes (2004). State v. Hearns, 961 So.2d 211, 213 (Fla. 2007) (explaining that the only consideration in determining whether an offense is a forcible felony is the statutory elements of the offense); Sinclair v. State, 973 So.2d 665, 665 (Fla. 3d DCA 2008) (reversing sentence and remanding for resentenc-ing because false imprisonment is not enumerated in subsection 775.082(9)(a)l., Florida Statutes (2004)); see also § 787.02(l)(a), Fla. Stat. (2004) (defining false imprisonment as “forcibly, by threat, or secretly confining, abducting, imprisoning, or restraining another person without lawful authority and against her or his will,” which may be accomplished by physical force, but also in other ways).
We must further conclude that the January 13, 2009 order on the second rule 3.800(a) motion was entered while the trial court lacked jurisdiction due to the pen-dency of the appeal from the first order. Ordinarily, a trial court has no jurisdiction to consider a rule 3.800(a) motion while the appeal from the denial of a prior rule 3.800(a) motion is pending. E.g., Lea-Scandrett v. State, 804 So.2d 531, 531 (Fla. 1st DCA 2002) (vacating order denying newer motion and remanding for the trial court to dismiss that motion). A more precise statement of the principle is the following:
[A] trial court does not have jurisdiction to consider the merits of such a motion if another rule 3.800(a) motion that is the subject of a pending appeal has raised the same issue or if the two motions are “sufficiently related to divest the trial court of jurisdiction.” Lovett v. State, 851 So.2d 851, 852-53 (Fla. 2d DCA 2003) (quoting Parrish v. State, 816 So.2d 146, 146 (Fla. 1st DCA 2002)); see also Gaines v. State, 806 So.2d 575, 575 (Fla. 1st DCA 2002). Conversely, a trial court may rule on the merits of a subsequent rule 3.800(a) motion if it raises issues that are not related to the earlier motion. Lovett, 851 So.2d at 852.
*1026 Latulip v. State, 884 So.2d 254, 255 (Fla. 2d DCA 2004).
In this case, the first motion challenged whether Defendant’s offense, as a matter of law, qualified for PRR sentencing; the second motion challenged the concurrent sentencing of PRR and HFO sentences, seeking to vacate the HFO sentence and to allow the PRR sentence to stand. If Defendant was correct in his first motion, then his second motion would have no validity; if the PRR designation were stricken, there would be no illegality in the remaining HFO sentence. For that reason, the two motions are sufficiently related such that the trial court lacked jurisdiction to rule on the second motion while the appeal from the denial of the first was pending.
Accordingly, we reverse the first order on appeal and remand for further proceedings; and we vacate the second order for lack of jurisdiction.
Reversed and Remanded as to Case No. W09-260; Order on Appeal in Case No. J/.D09-1088 Vacated.
WARNER, POLEN and STEVENSON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Bryant v. State, 102 So. 3d 660 (Fla. 2d DCA 2012)…4th DCA 2004). The Fourth District recently concluded that the postconviction court did not have jurisdiction to consider the merits of a rule 3.800(a) motion where a prior rule 3.800(a) motion raising a related issue was on appeal. Davis v. State, 20 So. 3d 1024, 1025-26 (Fla. 4th DCA 2009). However, the court implied that if each motion had raised unrelated issues, the postconviction court could have considered the second motion. Id. Similarly, recent decisions from the Third District hold that a pending r…
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Kalogeras v. State, 58 So. 3d 889 (Fla. 5th DCA 2011)…Acosta v. State, 982 So. 2d 87 (Fla. 3d DCA 2008). The Second, Third and Fourth Districts, applying Hearns, have concluded that false imprisonment is not subject to PRR sentencing. See Lamb v. State, 32 So. 3d 117 (Fla. 2d DCA 2009); Davis v. State, 20 So. 3d 1024 (Fla. 4th DCA 2009); Mosquera v. State, 16 So. 3d 255 (Fla. 4th DCA 2009); and Sinclair v. State, 973 So. 2d 665 (Fla. 3d DCA 2008). The State unconvincingly attempts to distinguish Lamb (and to some extent, Hearns), by arguing that Appellant’s fal…
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Reynolds v. State, 28 So. 3d 979 (Fla. 2d DCA 2010)…earli [*981] er motion, the trial court had jurisdiction to rule on the merits of this motion. Accordingly, we reverse and remand with instructions that the trial court address the merits of LaTulip’s motion. 884 So. 2d at 254. Cf. Davis v. State, 20 So. 3d 1024 (Fla. 4th DCA 2009) (holding that the postconviction court lacked jurisdiction to rule on motion to correct illegal sentence due to the pendency of an appeal from a prior rule 3.800(a) motion where the two motions were related). Reversed and remand…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited (12 total)
- State v. Hearns, 961 So. 2d 211 (Fla. 2007)
- Johnson v. State, 927 So. 2d 251 (Fla. 2d DCA 2006)
- Sinclair v. State, 973 So. 2d 665 (Fla. 3d DCA 2008)
- Bryant Parrish v. State, 816 So. 2d 146 (Fla. 1st DCA 2002)
- Robinson v. State, 816 So. 2d 146 (Fla. 1st DCA 2002)
- Latulip v. State, 884 So. 2d 254 (Fla. 2d DCA 2004)
- Lovett v. State, 851 So. 2d 851 (Fla. 2d DCA 2003)
- N.E.B. v. State, 806 So. 2d 575 (Fla. 1st DCA 2002)
- Gaines v. State, 806 So. 2d 575 (Fla. 1st DCA 2002)
- Lea-Scandrett v. State, 804 So. 2d 531 (Fla. 1st DCA 2002)