ROOSEVELT STEWART, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Roosevelt Stewart appeals his sentence for cocaine offenses, challenging a three-year minimum mandatory term imposed for sale or delivery within 1000 feet of a place of worship. The court affirmed the trial court's denial of his motion to correct sentencing error, holding that because the illegal sentence resulted from a negotiated plea agreement, the proper remedy is a motion to set aside the plea under Rule 3.850, not a sentencing correction motion under Rule 3.800.
The court held that Stewart was correct that no statutory authorization exists for the three-year minimum mandatory term, but affirmed the trial court's denial of the Rule 3.800 motion because the proper remedy for challenging an illegal sentence resulting from a negotiated plea is a Rule 3.850 motion to set aside the plea, vacate the judgment and sentence, and reinstitute charges.
[1] A motion to correct a sentencing error under Florida Rule of Criminal Procedure 3.800(b)(2) is not the proper vehicle to challenge a minimum mandatory term that was part…
[2] The appropriate procedure to challenge a minimum mandatory term imposed as part of a negotiated plea is a motion under Florida Rule of Criminal Procedure 3.850 to set asi…
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“Mr. Stewart is correct that the three-year minimum mandatory term is not required by statute to be imposed for this offense.”
The court acknowledged that no statutory authorization exists for the minimum mandatory term imposed.
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Join FLexlaw to unlock all legal intelligenceStewart pleaded no contest to sale or delivery of cocaine within 1000 feet of a place of worship and sale or delivery of cocaine pursuant to a negotia…
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Roosevelt Stewart appeals his judgments and sentences following his no contest plea for sale or delivery of cocaine within 1000 feet of a place of worship and sale or delivery of cocaine. Pursuant to a negotiated plea agreement, Mr. Stewart was sentenced to eight years in prison for both offenses and a three-year minimum mandatory term for the first offense. The *573Public Defender filed an Anders1 brief, noting that Mr. Stewart filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). The motion argued that the three-year minimum mandatory term for the offense of sale or delivery of cocaine within 1000 feet of a place of worship was improper because no statutory authorization exists for imposition of a minimum mandatory term for this offense. Mr. Stewart asked the trial court to strike the minimum mandatory term from his sentence. The trial court failed to rule on the motion within sixty days, and it is therefore deemed denied. See Fla. R.Crim. P. 3.800(b)(2)(B).
Mr. Stewart is correct that the three-year minimum mandatory term is not required by statute to be imposed for this offense. See § 893.13(1)(e), Fla. Stat. (2014). However, the minimum mandatory term was part of his plea agreement and, although he did not waive the right to challenge an illegal sentence based on the fact that it was the result of a negotiated plea, see Haynes v. State, 106 So.3d 481, 482 (Fla. 5th DCA 2013) (quoting Torbert v. State, 832 So.2d 203, 205 (Fla. 4th DCA 2002)), a rule 3.800 motion was not the proper vehicle to challenge the minimum mandatory term. The Fifth District outlined the proper procedure as follows:
As the sentence was the product of a negotiated plea, the remedy is not to correct the illegal sentence, but rather a motion under Rule of Criminal Procedure 3.850 to set aside the plea, vacate the judgment and sentence, and reinsti-tute all charges pending against the defendant prior to entry of the plea.
We therefore affirm the trial court’s denial of Mr. Stewart’s rule 3.800 motion without prejudice to his right to file an appropriate rule 3.850 motion within the time remaining under rule 3.850(b).
Affirmed.
SILBERMAN and CRENSHAW, JJ„ Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Rosario v. State, 260 So. 3d 335 (Fla. 4th DCA 2018)
Authorities Cited
- Anders v. California, 386 U.S. 738 (U.S. 1967)
- Haynes v. State, 106 So. 3d 481 (Fla. 5th DCA 2013)
- Durwin Torbert v. State, 832 So. 2d 203 (Fla. 4th DCA 2002)