Harris v. State

Appellant seeks review of an order denying a petition for a writ of habeas corpus. Because the petition fails to state a facially sufficient claim for relief pursuant to either Florida Rule of Criminal Procedure 3.850 or 3.800(a), we affirm.

In his petition, appellant alleged that he had been adjudicated guilty and sentenced in 1991, pursuant to a negotiated plea agreement. He subsequently challenged his convictions and sentences by a post-conviction motion. Because of procedural irregularities in the original sentencing proceeding, the original sentences were vacated. Further proceedings were held but, apparently as the result of clerical errors, appellant was not actually resen-tenced until some years later, when the original negotiated sentences were reimposed. When he ultimately was resen-tenced, he was not afforded the opportunity to be present. The only complaint made by appellant in his petition was that he had a constitutionally protected right to be present at resentencing. There is no allegation suggesting in any way that his absence at resentencing resulted in any type of harm to him, or that the sentences he received could not have been lawfully imposed had he been present at sentencing. (In fact, the plea agreement attached as an exhibit to the petition indicates that the sentences were “below the recommended guideline sentence.”) The trial court denied the petition on the ground that, because reimposition of the original negotiated sentences “constituted a purely ministerial act,” appellant’s presence was not required.

It is well settled that habeas corpus may not be used as a substitute for an appropriate motion seeking postconviction relief pursuant to the Florida Rules of Criminal Procedure. Fla. R.Crim. P. 3.850(h). See, e.g., Leichtman v. Singletary, 674 So.2d 889, 891-92 (Fla. 4th DCA 1996); State v. Broom, 523 So.2d 639, 641 (Fla. 2d DCA 1988), appeal dismissed, 545 So.2d 1366 (Fla.1989); Finley v. State, 394 So.2d 215, 216 (Fla. 1st DCA 1981). Accordingly, we must determine whether appellant’s petition states a facially sufficient claim for relief pursuant to either Florida Rule of Criminal Procedure 3.850 or 3.800(a).

The petition is facially insufficient when considered pursuant to rule 3.850. It is not under oath, as required by rule 3.850(c), and it fails to meet several of the other pleading requirements of that subdivision. The petition is also facially insufficient when considered pursuant to rule 3.800(a). Appellant’s only complaint is that he had a constitutional right to be present at resentencing. He makes no complaint about the sentences imposed, which appear to have been below those recommended by the sentencing guidelines. Rule 3.800(a) is intended to permit the correction only of sentencing errors that are clear from the face of the record, and result in substantive harm to the complainant. As the Second District Court of Appeal explained in Judge v. State, 596 So.2d 73, 77 (Fla. 2d DCA 1992) (en banc), the rule is not intended to address purely procedural complaints such as appellant’s:

Rule 3.800(a) is intended to provide relief for a narrow category of cases in which the sentence imposes a penalty that is simply not authorized by law. It is concerned primarily with whether the terms and conditions of the punishment for a particular offense are permissible as a matter of law. It is not a vehicle designed to re-examine whether the procedure employed to impose the punishment comported with statutory law and due process.

See also Carter v. State, 786 So.2d 1173, 1180 (Fla.2001) (citing to this portion of the Judge opinion with apparent approval). The justification for such a narrow interpretation of rule 3.800(a) should be apparent, given the fact that the rule imposes no time limit on the filing of a motion seeking relief.

It may well be, as appellant argues, that it was error not to afford him the opportunity to be present at resentencing. See, e.g., Barcelo v. State, 774 So.2d 895, 896 (Fla. 4th DCA 2001) (“A criminal defendant has the right to be present at sentencing, whether the sentence to be imposed is the immediate result of adjudication of guilt or the result of a successful 3.850 challenge”). Had appellant sought direct review of the order reimposing his original sentence, we might well have concluded that a new sentencing hearing was required, at which he was entitled to be present. However, appellant did not appeal that order. As our supreme court has pointed out, even sentencing errors that would be treated as “fundamental” for purposes of direct appeal are not necessarily “illegal” for purposes of rule 3.800(a). Maddox v. State, 760 So.2d 89, 100 (Fla.2000) (citing Judge and Davis v. State, 661 So.2d 1193 (Fla.1995)).

Because appellant’s petition for a writ of habeas corpus does not state a facially sufficient claim for relief pursuant to either Florida Rule of Criminal Procedure 3.850 or 3.800(a), we affirm.

AFFIRMED.

DAVIS, J. concurs; BENTON, J., dissents with written opinion.