ISRAEL CAMELLON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE

Fla. 3d DCA | 2015-10-14
No. 3D15-1405
Before SUAREZ, O.J., and EMAS and FERNANDEZ, JJ.
178 So. 3d 910 Florida District Court of Appeal, Third District (2015) Caution
Cited by 3 cases

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Holding

A defendant may challenge a sentence imposed under invalid guidelines if the offense date falls within the Heggs window, and the concurrent sentence doctrine does not preclude relief.


Headnotes

[1] A defendant has standing to challenge a sentence under Heggs v. …

[2] A sentence imposed under invalid guidelines is subject to challenge if it could not have been validly imposed under prior guidelines without an upward departure.

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Facts & Procedural History

Defendant was convicted of second-degree murder and sentenced to thirty years under invalid guidelines. The offense date fell within the window establ…

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Opinion of the Court
EMAS, J.

EMAS, J.

Defendant appeals from an order denying his motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800. Defendant alleges the thirty-year sentence imposed for his conviction on the charge of second-degree murder violates Heggs v. State, 759 So.2d 620 (Fla.2000).1 We. agree and reverse and remand for a resentencing proceeding. ...

The State- properly concedes that Ca-mellón has standing to.challenge his sentence as the date of his offense (September 7,1996) falls within the window established by the Supreme Court for bringing a Heggs claim. See Trapp v. State, 760 So.2d 924, 928 (Fla.2000). (holding that a defendant has standing to .file a Heggs claim if the relevant criminal-offense oc-*911currad on or after October 1, 1995, and before May 24,1997),

The State also properly concedes that Camellón is permitted to-challenge his sentence under Heggs because the thirty-year sentence imposed {under the invalid 1995 guidelines) could not validly have been imposed under the 1994 guidelines absent an upward departure. Because Camellon’s sentence was not an upward departure sentence,2 his motion is meritorious and he is entitled to resentencing under Heggs,

We reject the State’s argument that the “concurrent sentence doctrine” precludes relief under these circumstances. As- the Florida Supreme Court has observed, the “concurrent Sentence doctrine provides that in 'the ease of multiple concurrent sentences, an appellate court need not address challenges to every conviction where another conviction with a concurrent sentence of equal or greater length has been affirmed on appeal.” Jordan v. State, 143 So.3d 335, 388 (Fla.2014) (citing Himbayashi v. United States, 320 U.S. 81, 85, 63 S.Ct. 1375, 87 L.Ed. 1774 (1943)) (affirming the conviction on one count one and holding it was unnecessary to consider challenges to the conviction on the second count because the defendant was given concurrent sentences' of- equal length on both counts). (Emphasis added.)

The instant case does not involve a direct or collateral appeal challenging one of multiple underlying convictions resulting in concurrent sentences; it is instead an appeal challenging one of the multiple sentences as illegal. To the extent that the concurrent sentence doctrine, remains viable, it is inapplicable here, even if the granting of relief will , not impact Camel-Ion’s release date because he is serving a concurrent sentence. See Frizzell v. State, 238 So.2d 67, 69 (Fla.1970) (receded from on other grounds by State v. Wooden, 246 So.2d 755 (Fla.1971)) (recognizing that the fact a defendant is serving two concurrent sentences does not bar an appeal challenging the tegality of only one of those sentences); Mallory v. State, 577 So.2d 987 (Fla. 4th DCA 1991).3

We therefore reverse and remand with instructions that the trial court vacate the thirty-year sentence imposed on the second-degree murder count, conduct a resen-tencing proceeding pursuant to Heggs, and impose a new, lawful sentence.4 Camellón shall be present for the resentencing proceeding.


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