KENNETH COPELAND v. THE STATE OF FLORIDA ( 2022 )


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  •        Third District Court of Appeal
    State of Florida
    Opinion filed January 5, 2022.
    Not final until disposition of timely filed motion for rehearing.
    ________________
    No. 3D21-1913
    Lower Tribunal Nos. F07-14878 & F07-13480
    ________________
    Kenneth Copeland,
    Appellant,
    vs.
    The State of Florida,
    Appellee.
    An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from
    the Circuit Court for Miami-Dade County, Jose L. Fernandez, Judge.
    Kenneth Copeland, in proper person.
    Ashley Moody, Attorney General, for appellee.
    Before LOGUE, LINDSEY, and HENDON, JJ.
    PER CURIAM.
    Kenneth Copeland appeals the denial of his successive Florida Rule
    of Criminal Procedure 3.800 motion to correct an illegal sentence. 1 We
    affirm.
    Copeland asserts that his current fifteen-year sentence imposed after
    his probation was revoked is illegal because the trial court lacked jurisdiction
    to enter it nunc pro tunc to the date of Copeland’s probation violation hearing.
    “To be illegal within the meaning of rule 3.800(a) the sentence must impose
    a kind of punishment that no judge under the entire body of sentencing
    statutes could possibly inflict under any set of factual circumstances.” Carter
    v. State, 
    786 So. 2d 1173
    , 1178 (Fla. 2001). Conversely, “if it is possible
    under all the sentencing statutes-given a specific set of facts-to impose a
    particular sentence, then the sentence will not be illegal within rule 3.800(a)
    even though the judge erred in imposing it.” 
    Id.
     Copeland’s conviction for
    burglary with assault or battery is a felony punishable by life imprisonment.
    § 810.02(2)(a), Fla. Stat. (2007). Because the fifteen-year sentence imposed
    by the trial court was within the sentencing statutes, Copeland’s sentence is
    not illegal.
    1
    This is Copeland’s eighth action before this Court seeking review of his
    sentence imposed after twice violating previous probation sentences.
    2
    As to Copeland’s Fifth Amendment argument, the trial court’s written
    order revoking his probation was entered nunc pro tunc to June 2, 2014.
    Nunc pro tunc means ‘now for then’ and when applied to
    the entry of a legal order or judgment it normally does not refer
    to a new or fresh (de novo) decision, as when a decision is made
    after the death of a party, but relates to a ruling or action actually
    previously made or done but concerning which for some reason
    the record thereof is defective or omitted. The later record
    making does not itself have a retroactive effect but it constitutes
    the later evidence of a prior effectual act.
    Luhrs v. State, 
    394 So. 2d 137
    , 138–39 (Fla. 5th DCA 1981). The record
    reflects that while no written order of revocation was docketed, the trial court
    held a probation violation hearing, found that Copeland violated his
    probation, and sentenced him to the fifteen-year sentence he is currently
    serving. 2 This action revoked Copeland’s probation and the trial court was
    correct to enter its November 2019 nunc pro tunc order. Copeland has,
    therefore, been serving only one sentence since June 2, 2014.
    Affirmed.
    2
    We take judicial notice of the records in Case No. 3D14-1464. See Buckley
    v. City of Miami Beach, 
    559 So. 2d 310
    , 313 n.1 (Fla. 3d DCA 1990) (“The
    appellate court can take judicial notice of its own files.”).
    3
    

Document Info

Docket Number: 21-1913

Filed Date: 1/5/2022

Precedential Status: Precedential

Modified Date: 1/5/2022