IN THE SUPREME COURT OF FLORIDA CASE NO. SC ROBERT A. LYKINS, Petitioner, -vs- THE STATE OF FLORIDA. Respondent.

Transcription

1 IN THE SUPREME COURT OF FLORIDA CASE NO. SC ROBERT A. LYKINS, Petitioner, -vs- THE STATE OF FLORIDA. Respondent. ON PETITION FOR DISCRETIONARY REVIEW FROM THE DISTRICT COURT OF APPEAL OF FLORIDA, THIRD DISTRICT BRIEF OF PETITIONER ON JURISDICTION BENNETT H. BRUMMER Public Defender Eleventh Judicial Circuit of Florida 1320 NW 14th Street Miami, Florida (305) ROY A. HEIMLICH Assistant Public Defender Florida Bar No

2 Counsel for Petitioner

3 TABLE OF CONTENTS INTRODUCTION... 1 STATEMENT OF THE CASE AND FACTS... 1 SUMMARY OF ARGUMENT... 2 ARGUMENT THE DISTRICT COURT S DECISION EXPRESSLY AND DIRECTLY CONFLICTS WITH THIS COURT S DECISIONS AS TO WHAT CONSTITUTES AN ILLEGAL SENTENCE CORRECTABLE UNDER R CONCLUSION...10 CERTIFICATE OF SERVICE...11 CERTIFICATE OF COMPLIANCE...11 i

4 TABLE OF CITATIONS CASES Adaway v. State, 2005 WL (Fla. Sup. Ct. March 17, 2005)... 9 Blakley v. State, 746 So. 2d 1182 (Fla. 4th DCA 1999)... 4 Bover v. State, 797 So. 2d 1246 (Fla. 2001)... 4 Brooks v. State, 605 So. 2d 874 (Fla. 1st DCA 1992), quashed on other grounds, 630 So. 2d 527 (Fla. 1992) 7 Buford v. State, 403 So. 2d 943 (Fla. 1981)... 8 Carter v. State, 786 So. 2d 1173 (Fla. 2001)... 3,4 Coker v. Georgia, 433 U.S. 584 (1977)... 4,7,8 Cotton v. State, 769 So. 2d 345 (Fla. 2000)... 9 Gibson v. State, 721 So. 2d 363 (Fla. 2d DCA 1998)... 9 Hale v. State, 630 So. 2d 521 (Fla. 1993)... 4,6,9 Harmelin v. Michigan, 501 U.S. 957 (1991)... 9 Holman v. State, 740 So. 2d 1258 (Fla. 3d DCA 1999)... 5 Lykins v. State, 341 So. 2d 808 (Fla. 3d DCA 1977)... 4,6 Lykins v. State, ii

5 29 Fla. L. Weekly D681, 2004 WL (Fla. 3d DCA Ap. 7, 2004)...3,5 M.R.R. v. State, 411 So. 2d 983 (Fla. 3d DCA 1982)... 7 Maddox v. State, 760 So. 2d 89 (Fla. 2000)... 3 McCray v. State, 358 So. 2d 615 (Fla. 1st DCA 1978)... 7 Ridley v. State, 441 So. 2d 188 (Fla. 5th DCA 1983)... 7 Roper v. Simmons, 18 Fla. L. Weekly Fed. 131 (U.S. Sup. Ct. March 1, 2005)... 9 Solem v. Helm, 463 U.S. 277 (1983)... 4,6,8,9 State v. Callaway, 658 So. 2d 983 (Fla. 1995), receded from on other grounds, Dixon v. State, 730 So. 2d 265 (Fla. 1999)... 4 State v. Mancino, 714 So. 2d 429 (Fla. 1998)... 3,5 State v. Spriggs, 754 So. 2d 84 (Fla. 4th DCA 2000)... 3 Weems v. United States, 217 U.S. 349 (1910)... 5 Williams v. State, 630 So. 2d 534 (Fla. 1994)... 9 Young v. State, 619 So. 2d 378 (Fla. 2d DCA 1993)... 6 iii

6 FLORIDA STATUTES AND SESSION LAWS Chapter , Laws of Section (1973)... 7 Section (1975)... 7 Section (1973)... 6,7 FLORIDA RULES OF CRIMINAL PROCEDURE Rule ,3,4,5,6,10 Rule ,4 iv

7 INTRODUCTION Petitioner Robert A. Lykins (defendant in the trial court), seeks discretionary review of a decision of the Third District Court of Appeal that expressly and directly conflicts with this Court s decisions as to what constitutes an illegal sentence, correctable under Rule The symbol A. refers to the opinion of the lower court, as set forth in the Appendix. STATEMENT OF THE CASE AND FACTS The District Court ruled as follows (A. 2): 1 As to defendant s constitutional attack on his sentence as violating the prohibition against cruel and/or unusual punishment, while we sympathize with the defendant s argument that the sentence imposed was disproportionate to the crime for which he was convicted, we agree with the Fourth District's observation in State v. Spriggs, 754 So.2d 84, 84 (Fla. 4th DCA 2000), that [a] rule 3.800(a) motion to correct an illegal sentence is not the proper vehicle for challenging a sentence on the basis that it violates the constitutional prohibition against cruel and unusual punishment. Since we see no other basis on which relief may be granted, we affirm the denial of defendant s motion except as otherwise stated herein. 2 1 The District Court s February 23, 2005 ruling, made on rehearing, reversed an April 7, 2004 ruling for defendant. See Lykins v. State, 29 Fla. L. Weekly D681, 2004 WL (Fla. 3d DCA Ap. 7, 2004). 2 The District Court also ruled as follows: We agree... that the trial court erred in denying the motion to strike the condition of hard labor imposed as part of the defendant s sentence. Accordingly, we remand with directions

8 to strike that condition. A. 2. This ruling granting defendant s Rule motion as to hard labor is inconsistent with the denial of defendant s Rule motion as to cruel and unusual punishment. 2

9 SUMMARY OF ARGUMENT This case involves a June 25, 1975 strongarm robbery, committed six days before the effective date of the 1975 robbery statute. Under the 1973 statute, any robbery was punishable by a term up to life. Long prior to the offense in this case, the legislature had determined that a robbery such as this one, a robbery without a weapon, warranted a sentence not to exceed 15 years. But the trial court, for no reason shown by the record, 3 reached to the limits of the 1973 statute, and sentenced defendant to 99 years for the robbery. Defendant contends this sentence is grossly disproportionate, and violates the cruel and unusual punishment clauses of the United States and Florida Constitutions. The sentence transcends constitutional limitations, is a sentence imposing a kind of punishment that no judge... could possibly inflict, and is an illegal sentence cognizable under Rule The draftsman who put the words at any time in Rule 3.800(a) could not have imagined a case more clearly warranting their application. The District Court s refusal to reach the merits of defendant s constitutional claim is inconsistent 3 The information, plea transcript, sentencing transcript and written sentence are all in the record, and the relevant facts indicated in the pre-sentence investigation appear to have been spread on the record at sentencing. 3

10 with this Court s Rule rulings. ARGUMENT THE DISTRICT COURT S DECISION EXPRESSLY AND DIRECTLY CONFLICTS WITH THIS COURT S DECISIONS AS TO WHAT CONSTITUTES AN ILLEGAL SENTENCE CORRECTABLE UNDER R The Third District s assertion that a Rule 3.800(a) motion is not the proper vehicle for asserting cruel and unusual punishment claims is supported only by the cited case, State v. Spriggs, 754 So. 2d 84 (Fla. 4th DCA 2000). Neither decision explains why Rule is not a proper vehicle. Neither explains the result: an unconstitutional sentence, plain on the record, stands when it is too late for a Rule motion. The decision below not only conflicts with this Court s decisions as to what constitutes an illegal sentence under Rule 3.800, but also denies effect to the rule s language, authorizing relief at any time. In State v. Mancino, 714 So. 2d 429, 433 (Fla. 1998) the Court held that [a] sentence that patently fails to comport with statutory or constitutional limitations is by definition illegal. See Maddox v. State, 760 So. 2d 89 (Fla. 2000). Carter v. State, 786 So. 2d 1173, 1178 (Fla. 2001), refined the definition: To be illegal within the meaning of 4

11 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. (Supreme Court s emphasis, quoting Blakley v. State, 746 So. 2d 1182, (Fla. 4th DCA 1999)); see Bover v. State, 797 So. 2d 1246 (Fla. 2001). Apparently the District Court felt Mr. Lykins claim would have been better presented by Rule motion. Here the precedents establishing Mr. Lykins right to a proportional non-capital sentence were established after a Rule motion would have been timely. See Solem v. Helm, 463 U.S. 277 (1983) (life sentence); see also Coker v. Georgia, 433 U.S. 584, 594, 596 (1977) (death sentence); Hale v. State, 630 So. 2d 521, (Fla. 1993). 4 Mr. Lykins, without counsel, did not challenge his sentence until But Rule imposes no time limit on the granting of relief. See State v. Callaway, 658 So. 2d 983, (Fla. 1995) (Rule motion can be filed at any time, even decades after sentence), receded from on other grounds, Dixon v. State, 730 So. 2d 265 (Fla. 1999); see also Carter, 786 So. 2d at Mr. Lykins direct appeal ended in early See Lykins v. State, 341 So. 2d 808 (Fla. 3d DCA 1977). 5

12 Bover, 797 So. 2d at 1247, indicates that the error must be apparent from the face of the record. Apparently the District Court also considered that a sentence violating constitutional limits is not illegal unless it also violates statutory limits. Thus it granted the Rule motion addressed to hard labor, but denied relief on the claim that a 99-year sentence for strongarm robbery was cruel and unusual. 5 Mancino, 714 So. 2d at 432, makes plain that an unconstitutional sentence is illegal without regard to statutory limits. Apparently the District Court took the view that defendant s cruel and unusual punishment claim could not be established on the face of the record or without an evidentiary hearing. See Lykins v. State, 29 Fla. L. Weekly D681, 2004 WL (Fla. 3d DCA Ap. 7, 2004). Defendant never sought the evidentiary hearing the District Court initially suggested, and then refused. Defendant instead contended the issue could be resolved 5 Punishment at hard labor was held cruel and unusual punishment in Weems v. United States, 217 U.S. 349 (1910). Sixty years later, in 1970, the Florida legislature repealed Florida s hard labor statute. See Holman v. State, 740 So. 2d 1258 (Fla. 3d DCA 1999). The Third District here said it could reach the claim that a sentence to hard labor was unauthorized, but not the claim that a 99-year sentence for strongarm robbery was unconstitutional. 6

13 on the face of the record, reflecting the nature of the offense and the relevant sentencing provisions. Plainly a sentence that, on the face of the record, unconstitutionally imposes a kind of punishment that no judge under the entire body of sentencing statutes could possibly inflict under any set of factual circumstances can be addressed at any time under Rule 3.800(a). By information filed July 23, 1975, Robert A. Lykins was charged, inter alia, with a June 25, 1975 robbery, in violation of Section , Florida Statutes (1973). The arrest affidavit indicated, and the sentencing transcript confirmed, that the offenses had been committed with a starter s pistol. Defendant pled guilty, and the trial court sentenced him to 99 years for robbery (plus 15 consecutive years for assault). Counsel claimed the sentence was cruel and unusual. The record indicated only prior arrests, not prior convictions. Defendant s direct appeal yielded a per curiam affirmance with citations addressing only the consecutive sentences and their length. Lykins v. State, 341 So. 2d 808 (Fla. 3d DCA 1977). On July 7, 2002, Mr. Lykins moved to correct his sentence. Though the motion was presented 26 years after the 7

14 sentence was imposed, it was not untimely under Rule 3.800(a), which provides that a motion to correct an illegal sentence may be made at any time. See Young v. State, 619 So. 2d 378 (Fla. 2d DCA 1993) (18 years). The motion asserted the sentence was disproportionate and cruel and/or unusual punishment, citing Hale v. State, 630 So. 2nd 521, 525 (Fla. 1993) and Solem v. Helm, 463 U.S. 277 (1983). 6 The trial court denied the motion. It is well established that a starter s pistol is not a weapon, and that a robbery in which a starter s pistol is used is an unarmed robbery. 7 However, the State treated this robbery as if it were comparable to a robbery with a deadly weapon. The 1973 robbery statute, Section (1973), made both robbery without a weapon and robbery with a deadly weapon punishable by life in prison; see Section (1973). The 1975 statute, Section , Florida Statutes (1975), made robbery with a deadly weapon punishable by life, and robbery without a weapon punishable by a maximum of 15 6 The State indicates that it filed a response to the 2002 motion, but has been unable to locate any copy. 7 See M.R.R. v. State, 411 So. 2d 983 (Fla. 3d DCA 1982); see also Brooks v. State, 605 So. 2d 874 (Fla. 1st DCA 1992), quashed on other grounds, 630 So. 2d 527 (Fla. 1992); Ridley v. State, 441 So. 2d 188 (Fla. 5th DCA 1983); accord, McCray v. State, 358 So. 2d 615 (Fla. 1st DCA 1978). 8

15 years in prison; See Sections and (1975); compare Sections and (1973). We know that the penalty provided for a robbery with a starter s pistol in the 1973 robbery statute was too severe; even the Legislature agreed that it was too severe. Here defendant committed a robbery without a weapon, and received a sentence similar to the sentence he could have received under the 1975 statute for robbery with a deadly weapon. The 1975 robbery statute was adopted by Chapter of the Laws of 1974, and was signed by the Governor on July 3, It reflected public judgment and contemporary values prior to this robbery. See Coker v. Georgia, 433 U.S. 584, 594, 596 (1977). Effective on July 1, 1975, it reduced the maximum penalty for an unarmed robbery such as the one in this case to 15 years. Though the new statute had not taken effect, it was adopted prior to the offense and is relevant in assessing whether the penalty imposed was disproportionate to the offense. Coker v. Georgia, 433 U.S. 584 (1977), held that the death penalty was a disproportionate for the crime of rape, because it was grossly out of proportion to the severity of the crime. It is difficult to accept the notion... that the rapist, with or without aggravating circumstances, should 9

16 be punished more heavily than the deliberate killer. Coker, 433 U.S. at 600; accord, Buford v. State, 403 So. 2d 943, , 954 (Fla. 1981). Solem v. Helm, 463 U.S. 277 (1983), required proportionality review of non-capital sentences because [t]he principle that a punishment should be proportionate to the crime is deeply rooted... in common law. Solem, 463 U.S. at 290. Holding that proportionality review should be guided by objective factors, Solem indicated three tests: first, we look to the gravity of the offense and the harshness of the penalty. Second... the sentences imposed on other criminals in the same jurisdiction. If more serious crimes are subject to the same penalty, or to less serious penalties, that is some indication that the punishment at issue may be excessive. Third, courts may find it useful to compare the sentences imposed for commission of the same crime in other jurisdictions. Solem, 463 U.S. at ; accord, Harmelin v. Michigan, 501 U.S. 957 (1991). See also Roper v. Simmons, 18 Fla. L. Weekly Fed. 131 (U.S. Sup. Ct. March 1, 2005) (juvenile death penalty). Hale v. State, 630 So. 2d 521, (Fla. 1993) acknowledged that the federal Constitution prohibits disproportionate prison sentences for non-capital crimes. See also 10

17 Williams v. State, 630 So. 2d 534 (Fla. 1994) (holding proportionality review appropriate). More recently, Cotton v. State, 769 So. 2d 345, (Fla. 2000), confirmed that a challenge on cruel or unusual punishment requires a proportionality analysis guided by objective criteria. Cotton cited with approval the decision in Gibson v. State, 721 So. 2d 363, 368 (Fla. 2d DCA 1998), which adopted the formulation in Solem, 463 U.S. at 292. See also Adaway v. State, 2005 WL (Fla. Sup. Ct. March 17, 2005) (cruel and unusual punishment claim warranted where punishment is disproportionate to crime). Notably, Hale, Williams and Cotton all upheld recidivist sentences; the sentence here was imposed upon a defendant with no record of prior convictions. It cannot be doubted that the robbery offense in this case was serious. On the other hand, by sentencing at the limit of the applicable 1973 statute, after the new statute was in effect, when there was no evident reason to do so, the trial court treated the offense here as if it were comparable to a robbery with a deadly weapon, when plainly it was a far less serious offense, and imposed a sentence appropriate for the far more serious offense. The essence of the claim here is that defendant received the same sentence for a strongarm robbery that was authorized 11

18 for an armed robbery, when established public judgment was that the sentence should not exceed 15 years. The imposition of a sentence almost seven times the newly adopted maximum was disproportionate, violated the cruel and unusual punishment clauses of the State and federal constitutions and was illegal because beyond constitutional limitations. Such a sentence may properly be challenged by Rule motion at any time, as the rule expressly provides. CONCLUSION The Court should grant discretionary review. Respectfully submitted Florida BENNETT H. BRUMMER Public Defender Eleventh Judicial Circuit of 1320 Northwest 14th Street Miami, Florida By: ROY A. HEIMLICH Assistant Public Defender 12

19 CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing was mailed to Linda S. Katz, Assistant Attorney General, Office of the Attorney General, Criminal Appeals Division, 444 Brickell Avenue, Suite 950, Miami, Florida on March 29, ROY A. HEIMLICH Assistant Public Defender CERTIFICATE OF COMPLIANCE Undersigned counsel certifies that the type used in this brief is Courier New 12 point, except that the headings are in 14 point proportionately spaced Times New Roman. ROY A. HEIMLICH Assistant Public Defender 13

20 A P P E N D I X