William J. Plott v. State of Florida , 148 So. 3d 90 ( 2014 )

Supreme Court of Florida
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No. SC12-922
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WILLIAM J. PLOTT,
Petitioner,
vs.
STATE OF FLORIDA,
Respondent.
[September 18, 2014]
QUINCE, J.
William Plott seeks review of the decision of the Second District Court of
Appeal in Plott v. State, 86 So. 3d 516 (Fla. 2d DCA 2012), on the ground that it
expressly and directly conflicts with a decision of this Court in State v. Fleming,
61 So. 3d 399 (Fla. 2011), and the First District Court of Appeal in Hughes v.
State, 826 So. 2d 1070 (Fla. 1st DCA 2002), approved on other grounds, 901 So.
2d 837 (Fla. 2005), on a question of law. We have jurisdiction. See art. V, §
3(b)(3), Fla. Const.
The question before us is whether a motion brought under Florida Rule of
Criminal Procedure 3.800(a) is an appropriate vehicle to attack a defendant’s
upward departure sentence under Apprendi v. New Jersey, 530 U.S. 466 (2000),
and Blakely v. Washington, 542 U.S. 296 (2004). We conclude that a claim of
error under Apprendi and Blakely is cognizable in a rule 3.800(a) motion.
Accordingly, we quash the Second District’s decision in Plott and approve the First
District’s decision in Hughes. We remand to the Second District for the
application of a harmless error analysis under Galindez v. State, 955 So. 2d 517
(Fla. 2007), and, if it is determined not to be harmless, to remand the case for
resentencing.
FACTS AND PROCEDURAL HISTORY
In November 1997, a jury convicted Plott of four counts of armed sexual
battery, and the trial court imposed four life sentences pursuant to the 1995
sentencing guidelines. Plott, 86 So. 3d at 517.1 The trial court’s judgment was
affirmed on direct appeal. See Plott v. State, 731 So. 2d 1285 (Fla. 2d DCA 1999)
(table). In May 2005, Plott was resentenced pursuant to Heggs v. State, 759 So. 2d
620 (Fla. 2000).2 At the resentencing hearing, the State requested an upward
departure sentence of life imprisonment on the armed sexual battery convictions
because the victim was treated in an unnecessarily cruel fashion. Without
1. Plott was also sentenced to five years in prison on an aggravated assault
with a firearm conviction. Plott v. State, 846 So. 2d 610, 611 (Fla. 2d DCA 2003).
2. In Heggs, we held that the 1995 amendments to the 1994 sentencing
guidelines were unconstitutional. Id. at 627.
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empaneling a jury, the circuit court reimposed the four life sentences as upward
departure sentences.3 In support of the upward departures, the circuit court made
findings in open court while referring to specific portions of the trial testimony
transcript:
[T]he defendant and his conduct and acts in this case established that
the crimes were committed in an extraordinary cruel, egregious,
vicious, and wicked manner; that the conduct went beyond that of
ordinary sexual battery.
That particularly establishing the criteria under the Weekley [v.
State, 584 So. 2d 78 (Fla. 3d DCA 1991)4] case, the Court finds that
the defendant, after picking up the victim, showed her a gun and
threatened her. At the first location he punched her in the face with
his fist so hard that it knocked her out of the Jeep to the ground. He
continued to hit her. I find that in trial testimony pages 38, 39, and
90.
In addition, he pressed his forearm to the throat where she
could not breathe and was seeing stars; that is found at trial testimony
page 40.
He committed extremely rough anal sex on her the first time;
that’s found at trial testimony page 44. He then drove her to another
area and . . . had her commit oral sex upon him, in a rough and
threatening manner; at trial testimony 45 to 49.
3. Plott was again sentenced to five years’ imprisonment on the aggravated
assault with a firearm conviction.
4. In Weekley, the Third District Court of Appeal found—as a valid reason
for an upward departure sentence—that the actions on the part of the defendant
were “so extraordinary, cruel, egregious, vicious, and wicked that they went
beyond the ordinary sexual battery, kidnapping, or aggravated battery case.” Id. at
80.
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At the second location he again anally and vaginally raped her.
He hit her in the head again, even though she had asked him to please
not hurt her or hit her again. That’s in trial testimony pages 50 to 53.
After committing those sexual batteries, again he straddled her
in the vehicle, yanked her head back, placed the gun in her mouth to
the point where she was gagging; that’s found at trial testimony page
55 and 59. He in addition threatened her with a knife, at trial
testimony page 88 and 89.
I find that in and of itself to be a sufficient basis for an upward
departure and ask that the State attorney transcribe these findings and
attach them to the sentencing guidelines.
Plott’s counsel “did not argue [at the resentencing proceeding] that the trial court
erred by refusing to conduct a jury trial to determine the factual basis for the
upward departure,” even though the issue of whether a jury was required was
“hotly debated” at the time. Plott, 86 So. 3d at 518. However, Plott’s counsel
expressed to the circuit court that there is “recent case law on enhancement of
penalties that the U.S. Supreme Court has [said that] it’s supposed to be a jury
determination on certain issues.” The Second District affirmed Plott’s four life
sentences that were imposed on resentencing. See Plott v. State, 940 So. 2d 432
(Fla. 2d DCA 2006) (table).
In September 2010, Plott, pro se, filed the instant motion to correct illegal
sentence under rule 3.800(a), claiming that under Apprendi and Blakely he was
entitled to a jury trial at his resentencing for the determination of the factual
grounds since it resulted in an upward departure sentence. Plott, 86 So. 3d at 517.
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Plott asked the circuit court to vacate his sentence and resentence him to a valid
guidelines sentence. Plott maintained that under the 1994 sentencing guidelines,
the maximum sentence he could have received on resentencing was 22.06 years.
Finding that Plott’s sentences were within their statutory maximums, the circuit
court denied Plott’s claim and ultimately denied the rule 3.800(a) motion.5 Id.6
Plott appealed the circuit court’s order denying his rule 3.800(a) motion. Id.
The Second District found that the claim of Apprendi error was a procedural error
in sentencing that could have been preserved and raised on direct appeal, and
therefore, it was not a ground for relief under rule 3.800(a). Id. at 519. Because
the error was not cognizable under rule 3.800(a), the Second District affirmed the
circuit court’s denial of relief. Id.
ANALYSIS
The question before the Court is whether a rule 3.800(a) motion is a proper
vehicle to attack an upward departure sentence—which was imposed at
resentencing—based on a claim of error under Apprendi and Blakely. Because this
5. The circuit court also rejected Plott’s argument—which is not raised in
this Court—that his sentences were illegal because the court failed to attach written
findings justifying the upward departures.
6. The resentencing hearing transcript was attached to the circuit court’s
order.
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is a pure question of law, this Court’s review is de novo. Keck v. Eminisor, 104
So. 3d 359, 366 (Fla. 2012).
Florida Rule of Criminal Procedure 3.800(a) states in pertinent part:
(a) Correction. A court may at any time correct an illegal sentence
imposed by it, or an incorrect calculation made by it in a sentencing
scoresheet, when it is affirmatively alleged that the court records
demonstrate on their face an entitlement to that relief, provided that a
party may not file a motion to correct an illegal sentence under this
subdivision during the time allowed for the filing of a motion under
subdivision (b)(1) [“Motion Before Appeal”] or during the pendency
of a direct appeal.
Fla. R. Crim. P. 3.800(a). Rule 3.800 allows defendants to petition “the courts to
correct sentencing errors that may be identified on the face of the record.”
Williams v. State, 957 So. 2d 600, 602 (Fla. 2007). The intent of rule 3.800(a) is
“to balance the need for finality of convictions and sentences with the goal of
ensuring that criminal defendants do not serve sentences imposed contrary to the
requirements of law.” Carter v. State, 786 So. 2d 1173, 1176-78 (Fla. 2001).
“Since 1968, our procedural rules have provided for the correction of illegal
sentences.” Id. at 1176. An “illegal sentence” is undefined in rule 3.800. This
Court has “generally defined an ‘illegal sentence’ as one that imposes a
punishment or penalty that no judge under the entire body of sentencing statutes
and laws could impose under any set of factual circumstances.” Williams, 957 So.
2d at 602 (quoting Carter, 786 So. 2d at 1181).
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“[T]he definition of ‘illegal sentence’ as interpreted by case law has
narrowed significantly since that term was used in the 1960s and 1970s.” Carter,
786 So. 2d at 1176. In Davis v. State, 661 So. 2d 1193 (Fla. 1995), this Court
defined an “illegal sentence” as “one that exceeds the maximum period set forth by
law for a particular offense without regard to the guidelines.” Id. at 1196. We
later rejected the contention that Davis mandates that only those sentences that
facially exceed the statutory maximums may be challenged as illegal under rule
3.800(a). State v. Mancino, 714 So. 2d 429, 433 (Fla. 1998). Instead, “[a]
sentence that patently fails to comport with statutory or constitutional limitations is
by definition ‘illegal.’ ” Id. In Hopping v. State, 708 So. 2d 263 (Fla. 1998), we
found that the defendant’s sentence increased upon resentencing in violation of the
double jeopardy clause. Id. at 265. We announced that “where it can be
determined without an evidentiary hearing that a sentence has been
unconstitutionally enhanced in violation of the double jeopardy clause, the
sentence is illegal and can be reached at any time under rule 3.800.” Id.
“[I]mplicitly, if not expressly, [we] receded from Davis in Mancino and Hopping
to the extent that Davis could be read to limit challenges under rule 3.800(a) to
only those sentences that exceed the statutory maximum.” Carter, 786 So. 2d at
1177.
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The Holdings of Apprendi and Blakely
In 2000, the Supreme Court in Apprendi held that “[o]ther than the fact of a
prior conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubt.” 530 U.S. at 490. In 2004, the Blakely Court held:
Our precedents make clear . . . that the “statutory maximum” for
Apprendi purposes is the maximum sentence a judge may impose
solely on the basis of the facts reflected in the jury verdict or admitted
by the defendant. In other words, the relevant “statutory maximum”
is not the maximum sentence a judge may impose after finding
additional facts, but the maximum he may impose without any
additional findings. When a judge inflicts punishment that the jury’s
verdict alone does not allow, the jury has not found all the facts
“which the law makes essential to the punishment,” and the judge
exceeds his proper authority.
542 U.S. at 303-04 (citations omitted). Apprendi and Blakely “apply to all
resentencing proceedings held after they issued.” Fleming, 61 So. 3d at 405. A
claim of error under Apprendi and Blakely is subject to a harmless error analysis.
Galindez, 955 So. 2d at 524.
The Conflict Issue
Plott filed a motion to correct illegal sentence pursuant to rule 3.800(a),
requesting relief under Apprendi and Blakely. Plott, 86 So. 3d at 517. Similarly,
the appellant in Hughes raised a claim of Apprendi in his motion to correct illegal
sentence under rule 3.800(a). 826 So. 2d at 1071. In Hughes, the First District
found that “rule 3.800(a) is an appropriate procedural vehicle for raising an
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Apprendi claim, since such a violation would produce a sentence in excess of
constitutional and statutory maximums and would be apparent from the face of the
record.” Id. at 1072 (emphasis added).7 This, of course, expressly and directly
conflicts with the district court’s decision below which concluded that the claim of
Apprendi error was not cognizable under rule 3.800(a). Plott, 86 So. 3d at 519.8
In contending that the Court does not have discretion to review Plott, the
dissent argues that the “sole issue” in the First District’s decision in Hughes was
whether Apprendi applied retroactively to final cases and that its statement
regarding the propriety of using rule 3.800(a) for Apprendi claims was
dicta. Dissent op. at 13. But in our review of the district court’s decision in
Hughes, we noted that the district court “held, among other things, that Apprendi
does not apply retroactively.” 901 So. 2d at 839 (emphasis added). Before it
concluded that Apprendi was not retroactive, the district court in Hughes
necessarily decided the threshold question of whether Apprendi claims were
7. We approved the district court’s holding in Hughes that Apprendi does
not apply retroactively. Hughes, 901 So. 2d at 848. We decline Plott’s invitation
to recede from our decision in Hughes.
8. We find that Plott failed to demonstrate that the district court’s decision
below expressly and directly conflicts with our decision in Fleming, in which the
latter did not involve rule 3.800(a). See Fleming, 61 So. 3d at 401 (“During the
pendency of the belated appeal, Fleming filed a motion under Florida Rule of
Criminal Procedure 3.800(b)(2), claiming that his new sentence violated Apprendi
and Blakely.”).
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permitted in a rule 3.800(a) motion. 826 So. 2d at 1072. If it had decided that
Apprendi claims could not be raised in a rule 3.800(a) motion, then there would
have been no need for the district court to address the retroactivity question. See,
e.g., United States v. Tosh, 141 F. Supp. 2d 738, 742 (W.D. Ky. 2001) aff’d, 330
F.3d 836 (6th Cir. 2003) (“[T]he Court concludes that Defendant may use Old Rule
35(a) to challenge the legality of his 1985 sentence. . . . The Court next faces the
central issue: whether Apprendi . . . can apply retroactively.”).
In resolving this conflict, we hold that upward departure sentences that are
unconstitutionally enhanced in violation of Apprendi and Blakely patently fail to
comport with constitutional limitations, and consequently, the sentences are illegal
under rule 3.800(a). Because claims of error under Apprendi and Blakely are
cognizable in a rule 3.800(a) motion, we quash the Second District’s decision in
Plott and approve the First District’s decision in Hughes.
This Case
In the instant case, Plott was resentenced under Heggs in 2005. Thus,
Apprendi and Blakely were applicable to his resentencing proceeding. Fleming, 61
So. 3d at 405. The record reflects that at resentencing the circuit court imposed
upward departure sentences without a jury determining the factual basis for the
upward departure. Plott’s four life sentences were unconstitutionally enhanced
under Apprendi and Blakely. We note that the resentencing scoresheet indicated
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that Plott was subject to a maximum prison term of 22.06 years. We conclude that
the circuit court erred in denying Plott’s rule 3.800(a) motion.9
CONCLUSION
In light of the foregoing, we quash the Second District’s decision in Plott
and approve the First District’s decision in Hughes. We remand to the district
court for the application of a harmless error analysis under Galindez, and, if it is
determined not to be harmless, to remand the case for resentencing.
It is so ordered.
LABARGA, C.J., and PARIENTE, POLSTON, and PERRY, JJ., concur.
LEWIS, J., concurs in result.
CANADY, J., dissents with an opinion.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.
CANADY, J., dissenting.
This Court’s conflict jurisdiction under article V, section 3(b)(3) of the
Florida Constitution requires that the decision on review “actually ‘expressly and
directly’ conflict[]” with a decision from this Court or another district court. State
v. Vickery, 961 So. 2d 309, 312 (Fla. 2007); see Reaves v. State, 485 So. 2d 829,
830 (Fla. 1986) (“Conflict between decisions must be express and direct, i.e., it
must appear within the four corners of the majority decision.”). That is, the courts
9. Because of our resolution of this issue, it is unnecessary for the Court to
determine whether Plott’s sentences constitute “manifest injustice.”
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must reach opposite holdings based on the same or closely similar controlling
facts. Crossley v. State, 596 So. 2d 447, 449 (Fla. 1992) (“Because the court
below in the instant case reached the opposite result on controlling facts which
[were substantially] identical, . . . we concluded that a conflict of decisions existed
that warranted accepting jurisdiction.”). The holdings in Plott v. State, 86 So. 3d
516 (Fla. 2d DCA 2012), and Hughes v. State, 826 So. 2d 1070 (Fla. 1st DCA
2002), do not satisfy this constitutional requirement for the exercise of this Court’s
jurisdiction.
In Plott, the defendant was resentenced in a post-Apprendi v. New Jersey,
530 U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004), de novo
proceeding during which he did not object to the trial judge’s findings supporting
the departure sentence imposed. 86 So. 3d at 517. In addition, on direct appeal, he
did not argue that the trial court erred by failing to empanel a jury to decide the
departure factors. Id. at 518. However, after his new sentence was final, he filed a
Florida Rule of Criminal Procedure 3.800(a) motion, alleging that the sentence was
illegal under Apprendi and Blakely because a jury did not determine certain
sentencing factors. Affirming the denial, the Second District Court held as
follows: “Here the error was a procedural error in sentencing that could have been
preserved and raised on direct appeal. Thus, it was not cognizable under rule
3.800(a).” Plott, 86 So. 3d at 519. In so holding, the district court relied on this
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Court’s decision in McGregor v. State, 789 So. 2d 976, 977 (Fla. 2001), which
held that an Apprendi error is procedural in nature and must be preserved for
review.
The First District Court in Hughes resolved a wholly different legal issue.
Hughes’s conviction and sentence were final before Apprendi issued. 826 So. 2d
at 1072. Unlike Plott, he was not resentenced post-Apprendi. Nevertheless in
2001, Hughes filed a rule 3.800(a) motion alleging that his sentence was illegal
under Apprendi, which he argued applied retroactively to his pre-Apprendi
sentence. Id. The First District “h[e]ld that the decision announced in Apprendi is
not of sufficient magnitude to be fundamentally significant, and thus, does not
warrant retroactive status.” 826 So. 2d at 1075. Accordingly, the district court
affirmed the trial court’s summary denial of Hughes’s motion but certified the
question of Apprendi’s retroactivity to this Court. Id.
Plainly, the district courts did not address the same question of law based on
the same controlling facts and did not reach contrary holdings. Whether an
Apprendi claim that was waived during sentencing or resentencing may
nevertheless be raised via rule 3.800(a) was not at issue in the First District’s
Hughes opinion. The sole issue was whether Apprendi applied retroactively to
final cases. The First District’s statement regarding the propriety of using rule
3.800(a) to raise unpreserved claims of Apprendi error is therefore dicta. The
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manner in which the court framed its statement concerning the availability of
3.800(a) relief—“We note initially . . . .”—makes clear that the court’s statement is
merely a passing observation and not a holding on an issue presented for decision.
See Hughes, 826 So. 2d at 1072.
In exercising this Court’s discretion to review Plott, the majority thus relies
on the First District’s dicta in Hughes as a basis for implied conflict with Plott.
This Court, however, previously made clear that implied conflict does not satisfy
the constitutional requirement for express and direct conflict. Dep’t of Health &
Rehab. Servs., 498 So. 2d 888, 889 (Fla. 1986) (stating that under the revised state
constitution “inherent or so called ‘implied’ conflict may no longer serve as a basis
for this Court’s jurisdiction”). The alleged conflict cases do not have similar
controlling facts, and the courts did not reach opposite holdings on the same issue.
Because this Court does not have discretion to review Plott, I dissent.
Application for Review of the Decision of the District Court of Appeal - Direct
Conflict of Decisions
Second District - Case No. 2D10-5719
(Manatee County)
Robert Buschel of Buschel Gibbons, P.A., Fort Lauderdale, Florida,
for Petitioner
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Pamela Jo Bondi, Attorney General, Tallahassee, Florida, and Robert Jay Krauss,
Bureau Chief, and Marilyn Muir Beccue, Assistant Attorney General, Tampa,
Florida,
for Respondent
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