KARL JOHNSON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Karl Johnson appealed the summary denial of his motion to correct an illegal sentence, seeking restoration of 550 days of jail credit that he had waived. The court affirmed the denial because the sentence itself was not illegal, but allowed Johnson to pursue a Rule 3.850 motion to withdraw his plea if he believed it was induced by a mistaken assumption about program eligibility requirements.
A sentence is not illegal merely because the defendant waived jail credit as part of a plea agreement. However, if the defendant's allegations are true and the plea was made based on a mistaken assumption about program requirements, the proper remedy is not to award waived credit but to allow the defendant to withdraw his plea under Rule 3.850.
[1] A sentence is illegal if its terms or conditions are impermissible as a matter of law.
[2] A defendant's express waiver of all credit for time served renders a sentence that is otherwise within statutory limits not illegal.
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Join FLexlaw to unlock all legal intelligence“A sentence is illegal 'if the terms or conditions of the punishment for a particular offense are impermissible as a matter of law.'”
Establishes the legal standard for determining whether a sentence is illegal; the court's framework for analyzing Johnson's claim.
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Join FLexlaw to unlock all legal intelligenceJohnson was charged with probation violations. The State offered him a plea agreement: 36 months in state prison with credit for time served and a jud…
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This is an appeal from a summary denial of a motion to correct illegal sentence, filed pursuant to Florida Rule of Criminal Procedure 3.800(a), in which the defendant, Karl Johnson, seeks the restoration of 550 days of jail credit. Because the defendant signed an acknowledgement waiving all credit for time served, we affirm the trial court’s summary denial of his Rule 3.800(a) motion, but for the reason explained below do so without prejudice to his filing a Florida Rule of Criminal Procedure 3.850 motion to withdraw his plea if he so chooses.
This proceeding arises out of a probation violation proceeding. According to Johnson’s motion, the State offered him thirty-six months in state prison with credit for all time served and a judicial recommendation for participation in the Modality substance abuse program while serving the sentence to close the case. Johnson states he was agreeable to this resolution. Johnson next alleges that at sentencing, the trial court expressed the belief the defendant had to serve the full thirty-six months to be eligible for the Modality program. Based upon this representation, Johnson states he agreed to waive all credit for time served in order to preserve the opportunity.
The defendant now claims the Modality program was eliminated prior to his sentence and, even if the Modality program still existed, it only required an eighteen-month incarceration, rather than thirty-six months believed by the trial court. Johnson claims he was induced to waive his jail credit based upon a false assumption.
A sentence is illegal “if the terms or conditions of the punishment for a particular offense are impermissible as a matter of law.” Carter v. State, 786 So.2d 1173, 1181 (Fla.2001). In this case, the defendant’s sentence is not illegal because it was a certain term below the maximum sentence of ten years for two counts of child abuse, see § 827.03, Fla. Stat. (2006), with an express waiver of all credit for time served. Thus, the trial court properly denied the defendant’s motion to correct illegal sentence.
However, if the defendant’s allegations in his motion are true, the plea agreement may have been made upon a mistaken assumption. In such cases, the proper remedy is not to award the defen*79dant credit for time served that he waived, but rather allow “the defendant [to] stand by the plea bargain as is, or [ ] withdraw his plea and proceed to a hearing on the original revocation of probation charges.” Rivera v. State, 954 So.2d 1216, 1218 (Fla. 3d DCA 2007) (citing Fulcher v. State, 875 So.2d 647, 650 (Fla. 3d DCA 2004)). Thus, we affirm without prejudice for the defendant, if he so chooses, to file a proper and timely Rule 3.850 motion to withdraw his plea. It appears the defendant is still within the two-year period to file such a motion. We express no view on the merits of any such motion.
Affirmed.
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Ortega v. State, 76 So. 3d 346 (Fla. 3d DCA 2011)…1).1 To the extent that Ortega is indeed asserting that his plea was “involuntary,” such a claim must be asserted by a motion filed pursuant to Florida Rule of Criminal Procedure 3.850. Johnson v. State, 60 So. 3d 1045 (Fla.2011); Johnson v. State, 50 So. 3d 77 (Fla. 3d DCA 2010). There is no time requirement within which to file a motion to correct an illegal sentence pursuant to Rule 3.800(a).2 By contrast, Rule 3.850(b) contains a two-year time limitation, which renders Ortega’s motion, on its face, un…
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Peralta v. State (Fla. 3d DCA 2024)…P.A., and Dane K. Chase (Saint Petersburg), for appellant. Ashley Moody, Attorney General, and Richard L. Polin, Chief Assistant Attorney General, for appellee. Before LINDSEY, MILLER, and LOBREE, JJ. PER CURIAM. 2 Affirmed. See Johnson v. State, 50 So. 3d 77, 78–79 (Fla. 3d DCA 2010) (affirming trial court’s denial of rule 3.800(a) motion to correct illegal sentence without prejudice to permit appellant to seek relief through proper and timely motion to withdraw the plea under rule 3.850); State v. H…
Authorities Cited
- Carter v. State, 786 So. 2d 1173 (Fla. 2001)
- Fulcher v. State, 875 So. 2d 647 (Fla. 3d DCA 2004)
- Rivera v. State, 954 So. 2d 1216 (Fla. 3d DCA 2007)