DELRICK JOHNSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Delrick Johnson appealed the denial of his motion to correct an allegedly illegal sentence imposed under Florida's habitual violent felony offender statute. The appellate court affirmed the trial court's denial, holding that Johnson's challenges to his habitualization sentence lacked merit.
The court affirmed the denial of Johnson's motion. First, Johnson's sentence as a habitual violent felony offender was not subject to sentencing guidelines restrictions, so the prohibition against using guideline factors twice did not apply. Second, Johnson's challenge to the sentencing process was not cognizable in a rule 3.800(a) motion, and even on the merits, no proof of release date was necessary because the prior conviction occurred within five years of the instant offense.
[1] A defendant sentenced under the habitual offender statute is not subject to the sentencing restrictions of the sentencing guidelines.
[2] A claim attacking the process by which a defendant was sentenced, rather than the legality of the sentence itself, is not cognizable in a motion to correct an illegal sen…
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Join FLexlaw to unlock all legal intelligence“Defendant was not given an upward departure sentence; he was sentenced pursuant to the habitualization statute and thus was not subject to the sentencing restrictions of the guidelines.”
Establishes that habitualization sentences are exempt from guidelines restrictions and thus the double-counting prohibition does not apply.
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Join FLexlaw to unlock all legal intelligenceJohnson was convicted and sentenced as a habitual violent felony offender (HFO) in 1989 for an offense committed within five years of his prior 1987 c…
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Delrick Johnson (Defendant) appeals an order summarily denying his rule 3.800(a) motion to correct illegal sentence. We affirm, but not for the reason provided by the trial court.1
Defendant’s first ground was that the same factors which were taken into account to calculate his guidelines score-sheet — including prior offenses, such as the robbery with a deadly weapon that was used to qualify him as a habitual violent felony offender — cannot be used as aggravating circumstances to depart upward from the guidelines. This claim lacks merit. While it is true that factors that already have been taken into account in calculating a guidelines score cannot be used also as aggravating circumstances for a departure sentence, Brown v. State, 763 So.2d 1190, 1192 (Fla. 4th DCA 2000), Defendant was not given an upward departure sentence; he was sentenced pursuant to the habitualization statute and thus was not subject to the sentencing restrictions of the guidelines. § 775.084(4)(e), Fla. Stat. (1989) (providing that sentencing under the habitual offender statute is not subject to the provisions of section 921.001, the statute governing the sentencing guidelines).
Defendant’s second ground was that the evidence presented at his sentencing hearing was insufficient to establish his release date from prison, though he notes that defense counsel conceded his qualification as a habitual felony offender (HFO). Sentencing as a HFO also would have required that the offense for which he was being sentenced was committed within five years of the date of conviction of the last prior felony or within five years of his release from a prior felony conviction. Compare § 775.084(l)(a)2., Fla. Stat. (1989), with § 775.084(l)(b)2., Fla. Stat. (1989). This claim is based on his allegation that the state did not provide a “certified copy” of his release date.
The second ground is not cognizable in a rule 3.800(a) motion; in it, Defendant attacked the process by which he was sentenced, not the legality of the sentence. See, e.g., Ward v. State, 946 So.2d 33 (Fla. 2d DCA 2006) (holding that claim that Department of Corrections affidavit supporting prison releasee reoffender sentence was not admissible was not cognizable in rule 3.800(a) motion to correct sentence). Even if the merits could be reached, the ground would lack merit. According to the motion, the case number for his prior conviction of robbery with a deadly weapon was no. 87-1286. According to the direct appeal opinion, he was convicted of this prior offense in 1987. That prior felony conviction occurred within five years of the date of commission of the instant offense, in 1989. Thus, no proof of release date was necessary.
Affirmed.
MAY, C.J., STEVENSON and LEVINE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Ward v. State, 946 So. 2d 33 (Fla. 2d DCA 2006)
- Germaine Brown v. State, 763 So. 2d 1190 (Fla. 4th DCA 2000)