ABRAHAM SIMMONS, JR., PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
Abraham Simmons petitioned for relief claiming his appellate counsel was ineffective for failing to raise a sentencing issue. The court granted the petition in part, finding that Simmons' violent career criminal (VCC) sentence for criminal mischief was illegal because criminal mischief does not qualify as a primary offense under the VCC statute.
The court granted the petition on ground I, finding that the VCC sentence for criminal mischief is illegal because criminal mischief is not a qualifying offense under the VCC statute. The court reversed Simmons' sentence for criminal mischief and remanded for resentencing.
[1] A claim of ineffective assistance of appellate counsel for failing to file a motion to correct an unauthorized sentence is cognizable in a petition for writ of mandamus.
[2] A sentence imposed under the Violent Career Criminal statute for criminal mischief is not authorized by law.
Previewing 2 of 3 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“The VCC statute specifies the offenses that qualify for VCC sentencing, and criminal mischief is not a qualifying offense.”
Establishes the legal basis for finding the sentence illegal
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceA jury convicted Simmons of burglary of an occupied dwelling and criminal mischief involving more than $1000. The trial court sentenced him as a viole…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Unauthorized Sentence cases and more on FLexlaw
In his petition filed under Florida Rule of Appellate Procedure 9.141(d), Abraham Simmons raises multiple claims of ineffective assistance of appellate counsel. We grant the petition as to ground I; we deny the remaining grounds without comment.
A jury convicted Simmons of burglary of an occupied dwelling and criminal mischief involving more than $1000. The trial court sentenced him as a violent career criminal (VCC) to thirty years’ imprisonment for the burglary and a concurrent term of ten years’ imprisonment for the criminal mischief.
In ground I of his petition, Simmons argues that appellate counsel was ineffective for failing to file a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). See Fortner v. State, 23 So.3d 1275, 1276 (Fla. 2d DCA 2010) (stating that a claim that appellate counsel was ineffective for failing to file a rule 3.800(b)(2) motion to correct a sentence that is not authorized by law is cognizable in a petition filed under rule 9.141(c)). He contends that his ten-year sentence as a VCC for criminal mischief is not authorized by the VCC statute. See Ubilla v. State, 8 So.3d 1200, 1202-03 (Fla. 3d DCA 2009) (reversing VCC sentence for theft because it does not qualify as a primary offense for which a VCC sentence may be imposed).
The State acknowledges Ubilla but argues that it was incorrectly decided. However, the cases cited by the State in support of its argument are inapposite because they concern the habitual violent felony offender statute. The VCC statute specifies the offenses that qualify for VCC sentencing, and criminal mischief is not a qualifying offense. See §§ 775.084(l)(d)(3), 776.08, Fla. Stat. (2010). Thus, Simmons’ VCC sentence for criminal mischief is illegal. If counsel had filed a rule 3.800(b)(2) motion to correct sentencing error and preserved this issue for review, this court would have been compelled to reverse Simmons’ sentence for criminal mischief and to remand for resentencing. Because a new appeal would be redundant, we reverse Simmons’ sentence for criminal mischief and remand for resentencing in accordance with this opinion.
Petition denied in part and granted in part.
NORTHCUTT, KELLY, and BADALAMENTI, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
-
Crews v. State (Fla. 2d DCA 2018)…the State concedes—that his thirty-year sentence on count two is illegal because grand theft is not a "primary felony offense" eligible for VCC sentencing under section 775.084(1)(d)(3), (4)(d)(3), Florida Statutes (2013). See Simmons v. State, 205 So. 3d 793, 794 (Fla. 2d DCA 2016) (stating that VCC sentence for criminal mischief, which had been imposed to run concurrently with VCC sentence for burglary of an occupied dwelling, was illegal because criminal mischief was not a qualifying offense); Ubil…
-
Lamberson v. State (Fla. 2d DCA 2021)…A 2010) (stating that a claim that appellate counsel was ineffective for failing to file a rule 3.800(b)(2) motion to correct a sentence that is not authorized by law is cognizable in a petition filed under rule 9.141(d)); see also Simmons v. State, 205 So. 3d 793, 794 (Fla. 2d DCA 2016) ("If counsel had filed a rule 3.800(b)(2) motion to correct sentencing error and preserved this issue for review, this court would have been compelled to reverse Simmons' sentence."). He argues that if the issue had been pre…
Authorities Cited
- Ubilla v. State, 8 So. 3d 1200 (Fla. 3d DCA 2009)
- Fortner v. State, 23 So. 3d 1275 (Fla. 2d DCA 2010)