PATRICIO NINO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Patricio Nino appeals the denial of his motion to correct an illegal sentence, arguing that Apprendi v. New Jersey and Blakely v. Washington prohibit the assessment of victim injury points on his sentencing scoresheet without jury findings. The court affirms, holding that these decisions are not retroactive to final convictions.
The court holds that Apprendi and Blakely are not retroactive and therefore do not apply to Nino's sentences. The fact that Nino received postconviction resentencing after Apprendi was announced does not change this outcome.
[1] Decisions of the United States Supreme Court in Blakely v. …
[2] A resentencing that occurs after Apprendi v. …
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Join FLexlaw to unlock all legal intelligence“the Apprendi and Blakely decisions are not retroactive”
Establishes the central holding that the Supreme Court decisions cited by the defendant cannot be applied to his final sentences from 1999.
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Join FLexlaw to unlock all legal intelligenceNino was convicted of kidnapping and attempted sexual battery in 1996. His convictions and sentences became final on direct review in 1999. He was res…
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COPE, C.J.
Patricio Nino appeals an order denying his motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm.
Defendant-appellant Nino was convicted of kidnapping and attempted sexual battery.1 This court affirmed, and the appeal became final on direct review in 1999. Nino v. State, 744 So. 2d 528 (Fla. 3d DCA), cause dismissed, 751 So. 2d 51 (Fla.1999). In 2000 the defendant was resen-tenced under Heggs v. State, 759 So. 2d 620 (Fla.2000), resulting in a sentence of 10.59 years on both counts.
On this appeal from the denial his Rule 3.800(a) motion, the defendant argues that the United States Supreme Court decisions in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), forbid the assessment of victim injury points on the defendant’s scoresheet unless there were jury findings regarding victim injury. We reject the defendant s argument, because the Apprendi and Blakely decisions are not retroactive. See Hughes v. State, 901 So. 2d 837, 846 (Fla.2005); Burrows v. State, 890 So. 2d 286 (Fla. 2d DCA 2004). The Apprendi and Blakely decisions were announced after the defendant’s convictions and sentences became final on direct review.
We have not overlooked the fact that the defendant was granted postconviction relief under Heggs and was resentenced on August 31, 2000. This postconviction re-sentencing occurred after Apprendi had been announced.2 That fact makes no difference. See Galindez v. State, 910 So. 2d 284 (Fla. 3d DCA 2005), review granted, 925 So. 2d 1030 (Fla.2006). As we did in Galindez, we certify direct conflict with Isaac v. State, 911 So. 2d 813 (Fla. 1st DCA 2005), review pending, No. SC05-2047 (Fla. filed Oct. 31, 2005).
Affirmed.
. The crime date was July 23, 1996.
. The decision in Apprendi was announced June 26, 2000. The defendant’s August 31, 2000 Heggs resentencing occurred after Ap-prendi but prior to the announcement of Blakely on March 23, 2004. It appears that there was no appeal by either side after the defendant's resentencing on August 31, 2000.
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Garnicki v. State, 951 So. 2d 30 (Fla. 3d DCA 2007)…PER CURIAM. Affirmed. See Nino v. State, 937 So. 2d 756 (Fla. 3d DCA 2006). We certify conflict with Isaac v. State, 911 So. 2d 813 (Fla. 1st DCA 2005), review pending, No. SC05-2047 (Fla. filed Oct. 31, 2005).…
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Sedrick Johnson v. State, 963 So. 2d 872 (Fla. 3d DCA 2007)…PER CURIAM. Affirmed. See Garnicki v. State, 951 So. 2d 30 (Fla. 3d DCA 2007)(certifying conflict with Isaac v. State, 911 So. 2d 813 (Fla. 1st DCA 2005)), review pending, No. SC05-2047 (Fla. filed Oct. 31, 2005); Nino v. State, 937 So. 2d 756 (Fla. 3d DCA 2006).…
Authorities Cited
- Apprendi v. New Jersey, 530 U.S. 466 (U.S. 2000)
- Heggs v. State, 759 So. 2d 620 (Fla. 2000)
- Blakely v. Washington, 542 U.S. 296 (U.S. 2004)
- Hughes v. State, 901 So. 2d 837 (Fla. 2005)
- Lemuel E. Isaac v. State, 911 So. 2d 813 (Fla. 1st DCA 2005)
- Galindez v. State, 910 So. 2d 284 (Fla. 3d DCA 2005)
- Burrows v. State, 890 So. 2d 286 (Fla. 2d DCA 2004)
- Mora v. McDonough, 925 So. 2d 1030 (Fla. 2006)
- Patricio Enrique Nino v. State, 744 So. 2d 528 (Fla. 3d DCA 1999)