MITCHELL DAVID JACKSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Mitchell David Jackson appeals his resentencing on an armed kidnapping conviction after this court previously vacated his original sentence. The court affirms the forty-year sentence imposed at resentencing and declines to address Jackson's challenges to his armed sexual battery sentences because his motion to correct illegal sentence on those counts was never ruled upon by the trial court.
The court affirms the forty-year resentence on the armed kidnapping conviction. The court declines to address Jackson's challenges to the armed sexual battery sentences because the motion to correct illegal sentence raising those issues was never ruled upon by the trial court, and appellate review is not available absent a trial court ruling.
[1] A defendant is not entitled to appellate review of issues raised in a motion to correct an illegal sentence that has not been ruled upon by the trial court.
[2] A resentencing court is not limited by the evidence presented or not presented in the original sentencing phase.
Previewing 2 of 4 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“To be preserved, the issue or legal argument must be raised and ruled on by the trial court.”
Establishes the requirement that appellate review requires a trial court ruling; Jackson's motion was never ruled upon
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Join FLexlaw to unlock all legal intelligenceJackson was convicted in 1987 of one count of armed kidnapping with a firearm, four counts of armed sexual battery with a firearm, and one count of ag…
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Mitchell David Jackson was convicted of one count of armed kidnapping with a firearm, four counts of armed sexual battery with a firearm, and one count of aggravated assault with a firearm based on events that occurred in 1987. In 2010, this court vacated Jackson’s sentence on the armed kidnapping conviction and remanded for resentencing on that single conviction. See Jackson v. State, 29 So.3d 1152, 1153 (Fla. 2d DCA 2010). Jackson now appeals from the resentencing. We affirm the forty-year sentence imposed at that resentencing hearing on the armed kidnapping conviction without further discussion.
In this appeal, Jackson also raises various arguments directed to his sentences on the four armed sexual battery convictions. We decline to address these arguments. *396The issues giving rise to these arguments were first raised in the circuit court by a motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a), but the motion was filed only three days before the long-scheduled re-sentencing hearing on the armed kidnapping conviction. At the start of the resen-tencing hearing, the circuit court expressly declined to rule on the new 3.800(a) motion, noting that the only matter scheduled to be addressed was the resentencing on the armed kidnapping conviction. Thus, it appears from our record that Jackson’s rule 3.800(a) motion has never been ruled on and remains pending. Having failed to secure a ruling on that motion, Jackson is not entitled to appellate review of the issues raised in that motion at this point. See, e.g., Rhodes v. State, 986 So.2d 501, 513 (Fla.2008) (“To be preserved, the issue or legal argument must be raised and ruled on by the trial court.” (citing § 924.051(l)(b), Fla. Stat. (2006), and Philip J. Padovano, Flonda Appellate Practice § 8.1, at 148 (2007 ed.))).
On remand, if Jackson wishes the circuit court to consider his pending rule 3.800(a) motion, he should notify the court and obtain a ruling. However, we note that if Jackson is successful in obtaining a resen-tencing hearing on the armed sexual battery convictions, the State will be entitled to offer evidence to prove all of Jackson’s prior convictions. See Lucas v. State, 841 So.2d 380, 387 (Fla.2003) (“[A] resentenc-ing court is not limited by evidence presented (or not presented) in ... the original ... sentencing phase.”); Morton v. State, 789 So.2d 324, 334 (Fla.2001) (holding that in general a “ ‘resentencing should proceed de novo on all issues bearing on the proper sentence’ ” (quoting Teffeteller v. State, 495 So.2d 744, 745 (Fla.1986))); see also State v. Collins, 985 So.2d 985, 992-93 (Fla.2008) (finding that neither double jeopardy nor due process were violated by allowing the State to prove a defendant’s full prior record at resentenc-ing after the defendant’s original sentence is vacated as illegal). We express no opinion on the wisdom of Jackson’s decision to go forward with his rule 3.800(a) motion in light of his criminal record.
Affirmed.
ALTENBERND and KELLY, JJ., Concur.
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Hoffmann v.Secretary (M.D. Fla. 2022)…the claim in his brief on appeal of the order denying his motion to correct his sentence. (Doc. 14-2 at 194–95, 198) However, a state appellate court will not review a claim raised for the first time on post- conviction appeal. Jackson v. State, 93 So. 3d 395, 396 (Fla. 2d DCA 2012). He arguably raised the claim in his second motion to correct his sentence. (Doc. 14-4 at 102–03, 106) However, he failed to appeal the post-conviction court’s order denying relief. (Doc. 14-2 at 2) Even so, the Sixth Ame…
Authorities Cited
- Morton v. State, 789 So. 2d 324 (Fla. 2001)
- Rhodes v. State, 986 So. 2d 501 (Fla. 2008)
- Teffeteller v. State, 495 So. 2d 744 (Fla. 1986)
- Despart v. State, 884 So. 2d 328 (Fla. 5th DCA 2004)
- State v. Ransom Louis Collins, 985 So. 2d 985 (Fla. 2008)
- Lucas v. State, 841 So. 2d 380 (Fla. 2003)
- Jackson v. State, 29 So. 3d 1152 (Fla. 2d DCA 2010)