IN THE SUPREME COURT OF FLORIDA CASE NO. THE STATE OF FLORIDA, Petitioner, vs. JORGE LUIS DOMINGUEZ, Respondent. ON PETITION FOR DISCRETIONARY REVIEW TO THE DISTRICT COURT OF APPEAL, THIRD DISTRICT BRIEF OF PETITIONER ON JURISDICTION CHARLES J. CRIST, JR. Attorney General RICHARD L. POLIN Florida Bar No. 0230987 Criminal Appeals Bureau Chief Office of the Attorney General Department of Legal Affairs 444 Brickell Avenue, Suite 950 Miami, Florida 33131 (305) 377-5441 (305) 377-5655 (fax)
TABLE OF CONTENTS TABLE OF CITATIONS... ii STATEMENT OF THE CASE AND FACTS... 1-2 SUMMARY OF ARGUMENT... 3 ARGUMENT... 4-6 THE DECISION OF THE DISTRICT COURT OF APPEAL BELOW EXPRESSLY AND DIRECTLY CONFLICTS WITH DECISIONS OF THIS COURT AND OTHER DISTRICT COURTS OF APPEAL ON THE QUESTION OF WHETHER A 3.800 MOTION TO CORRECT ILLEGAL SENTENCE MAY BE USED TO CHALLENGE THE VALIDITY OF A CONVICTION. CONCLUSION... 7 CERTIFICATE OF SERVICE... 7 CERTIFICATE REGARDING FONT SIZE AND TYPE... 8 i
TABLE OF CITATIONS Case Page Burgess v. State, 854 So. 2d 754 (Fla. 2d DCA 2003)... 4 Carter v. State, 786 So. 2d 1173 (Fla. 2000)... 5 McCraney v. State, 830 So. 2d 262 (Fla. 5th DCA 2002)... 4 ii
STATEMENT OF THE CASE AND FACTS Jorge Dominguez was convicted for the offense of armed robbery with a weapon. (App. 2). The State relied on the automobile that Dominguez was driving as the weapon for the armed robbery conviction. (App. 2). On direct appeal, the Third District Court of Appeal affirmed the convictions and sentences. Dominguez v. State, 800 So. 2d 242 (Fla. 3d DCA 2001). Dominguez then filed a motion for postconviction relief, under Rule 3.850, Florida Rules of Criminal Procedure, challenging the legality of his conviction and sentence for armed robbery with a weapon. (App. 2). Dominguez argued in that motion that the sentence was illegally enhanced for carrying a weapon (i.e., an automobile) during the course of a robbery because it is impossible to carry an automobile. (App. 2). The trial court denied the 3.850 motion and Dominguez appealed that order to the Third District Court of Appeal. While the appeal was pending in the Third District, this Court issued its opinion in State v. Burris, 29 Fla. L. Weekly S149 (Fla. 2004), in which the Court held that an automobile cannot be carried as a deadly weapon. In view of that decision, the Third District concluded that Dominguez was entitled to relief. However, the Third District concluded that Dominguez s appeal from the denial of a 3.850 motion should be treated as an appeal from the denial of a 3.800 motion. (App. 2). Treating the case as an appeal from the denial of a 3.800 motion, the Third 1
District vacated the armed robbery conviction, and remanded the case for resentencing. (App. 3). The Court concluded that Burris rendered Dominguez s sentence illegal, as follows: (App. 3).... Because Dominguez has been convicted of armed robbery where no armed robbery occurred, his sentence is illegal as a matter of law and cannot stand.... Dominguez s conviction for that crime must therefore be vacated and a conviction for strong-arm robbery imposed in its place. 2
SUMMARY OF ARGUMENT The Third District Court of Appeal treated a motion for post-conviction relief as a motion to correct illegal sentence, under Rule 3.800, Florida Rules of Criminal Procedure. After treating it as a 3.800 motion, the Third District proceeded to authorize the use of that 3.800 motion as a vehicle for setting aside a conviction. Rule 3.800 motions are not a viable means for contesting the legality of convictions. The lower court s opinion, permitting such a use of 3.800 motions to correct illegal sentences, expressly and directly conflicts with decisions of other district courts of appeal and of this Court, which have expressly held that 3.800 motions may not be used to contest the legality of a conviction. 3
ARGUMENT THE DECISION OF THE DISTRICT COURT OF APPEAL BELOW EXPRESSLY AND DIRECTLY CONFLICTS WITH DECISIONS OF THIS COURT AND OTHER DISTRICT COURTS OF APPEAL ON THE QUESTION OF WHETHER A 3.800 MOTION TO CORRECT ILLEGAL SENTENCE MAY BE USED TO CHALLENGE THE VALIDITY OF A CONVICTION. The Third District Court of Appeal, in the instant case, held that a 3.800 motion to correct an illegal sentence could be used to attack not only a sentence, but the underlying conviction. As a result, the lower court s opinion vacated the conviction for armed robbery, directing that the conviction be reduced to strong-arm robbery. The conclusion of the Third District that a 3.800 motion could be used to set aside a conviction, as opposed to (or in addition to) a sentence, conflicts with decisions of this Court and other district courts of appeal. Those other decisions have routinely held that a 3.800 motion is not a proper vehicle for attacking the validity of a conviction. By way of example, in McCraney v. State, 830 So. 2d 262 (Fla. 5th DCA 2002), the Court held: Double jeopardy challenges are not cognizable in a rule 3.800(a) proceeding because they are attacks on the underlying convictions, not the sentences. Similarly, in Burgess v. State, 854 So. 2d 754, 755 (Fla. 2d DCA 2003), Burgess filed a 3.800 motion to correct an illegal sentence, and, in one of his two claims, 4
challenged his convictions. The Second District rejected the challenge to the convictions as such a challenge is not proper under rule 3.800(a). In attempting to circumvent the long-standing principle that 3.800 motions can not be used to attack the validity of a conviction, the Third District relief upon this Court s decision, in Carter v. State, 786 So. 2d 1173, 1181 (Fla. 2000), where the Court held that a sentence is illegal if it imposes a kind of punishment that no judge under the entire body of sentencing statutes could possibly inflict under any set of factual circumstances. Carter, however, involved the validity of a habitual offender sentence; it did not involve an attack on the underlying conviction. Indeed, in attempting to define what constitutes an illegal sentence for the purpose of rule 3.800, this Court referred to the types of sentencing errors that may be corrected as illegal.... Id. at 1181 (emphasis added). Sentencing errors do not encompass convictions, which precede sentencing. Not only was the Third District s reliance on Carter improper, as Carter did not involve a challenge to an underlying conviction, but, the lower court was entirely unable to cite a single case in which any appellate court in Florida had ever authorized the use of a 3.800 motion to challenge an underlying criminal conviction. The decision of the Third District is not only contrary to multiple appellate court decisions in this State holding that 3.800 motions may not be used to attack 5
convictions, but, it is a decision of considerable importance, as it has the potential for substantially expanding the permitted uses of rule 3.800 and simultaneously allowing litigants to circumvent the time limitations of rule 3.850 through the simple expedient of changing the title of the motion from a motion to vacate conviction under rule 3.850 to a motion to correct illegal sentence under rule 3.800. In so doing, the lower court s opinion elevates form over substance and undermines decades of established legal principles. 6
CONCLUSION On the basis of the foregoing, an express and direct conflict exists, and this Court should accept jurisdiction to review the lower court s decision. Respectfully submitted, CHARLES J. CRIST, JR. Attorney General RICHARD L. POLIN Florida Bar No. 0230987 Bureau Chief, Criminal Appeals Office of the Attorney General Department of Legal Affairs 444 Brickell Avenue, Suite 950 Miami, Florida 33131 (305) 377-5441 (305) 377-5655 (fax) CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of the foregoing Brief of Petitioner on Jurisdiction was mailed this day of August, 2004, to ROY HEIMLICH, Assistant Public Defender, Office of the Public Defender, 1320 N.W. 14th Street, Miami, Florida 33125. RICHARD L. POLIN 7
CERTIFICATE REGARDING FONT SIZE AND TYPE The undersigned attorney hereby certifies that the foregoing Brief of Petitioner on Jurisdiction has been typed in Times New Roman, 14-point type. RICHARD L. POLIN 8