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Bover v. State10/4/2001
We have for review the decision in Bover v. State, 732 So. 2d 1187, 1192 (Fla. 3d DCA 1999), in which the Third District Court of Appeal certified conflict with the decisions of the Second District Court of Appeal in Bell v. State, 693 So. 2d 700 (Fla. 2d DCA 1997), Botelho v. State, 691 So. 2d 648 (Fla. 2d DCA 1997), and Judge v. State, 596 So. 2d 73 (Fla. 2d DCA 1991) (en banc), and the decision of the Fourth District Court of Appeal in Freshman v. State, 730 So. 2d 351 (Fla. 4th DCA 1999). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.
This Court recently determined in Carter v. State, 786 So. 2d 1173, 1180-81 (Fla. 2001), that a habitual offender sentence may be correctable as an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a), where the habitual offender statute in effect at the time of sentencing did not permit habitualization for life felonies. In so holding, we disapproved of the Third District's broad statement in Bover that no habitual offender sentence can be corrected as illegal pursuant to rule 3.800(a) if the error occurs in the adjudication of the defendant as a habitual offender. See id.
This case presents the related but distinct issue of whether a sentence based on predicate felony offenses in the record that do not satisfy the sequential conviction requirement of the habitual offender statute may be subject to correction as an illegal sentence under rule 3.800(a). For the reasons expressed in this opinion and in accordance with our reasoning in Carter, we hold that where the requisite predicate felonies essential to qualify a defendant for habitualization do not exist as a matter of law and that error is apparent from the face of the record, rule 3.800(a) can be used to correct the resulting habitual offender sentence.
BACKGROUND
Petitioner Jesus Bover was charged with eight counts of grand theft and seven counts of uttering a forged instrument for crimes committed between June 21 and September 17, 1993. See Bover, 732 So. 2d at 1189. Pursuant to a plea agreement in which Bover pled no contest as a habitual offender, the trial court sentenced Bover in 1994 as a habitual offender to concurrent sentences of ten years on each of the fifteen third-degree felonies. See id. Because the trial court sentenced Bover as a habitual offender, the statutory maximum for the offense was ten years rather than five years. See §§ 775.082(3)(d), 775.084(4)(a)3, Fla. Stat. (1993); Bover, 732 So. 2d at 1189.
In 1997, Bover filed a motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850, challenging his habitual offender sentences on the grounds that the trial court had vacated two of the predicate offenses used to qualify him for habitual offender treatment. See Bover, 732 So. 2d at 1189. The trial court denied relief and the Third District affirmed. The Third District held that because the trial court had vacated only part of Bover's sentences and not the underlying adjudications in Bover's prior cases, "those cases remained available to serve as predicate offenses for habitualization." Id. at 1189 n.4.
In 1998, Bover filed the present motion pursuant to rule 3.800(a), alleging that his habitual offender sentences were illegal because his predicate convictions did not satisfy the substantive requirements of the habitual offender statute. See id. at 1189. Specifically, Bover argued that because all the predicate offenses used to adjudicate him as a habitual offender had been imposed on June 30, 1992, they did not satisfy the sequential conviction requirement of section 775.084(5), Florida Statutes (1993). See id. This section provides:
In order to be counted as a pri
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