NOT FINAL UNTIL TIME EXPIRES
TO FILE REHEARING MOTION
AND, IF FILED, DISPOSED OF.
IN THE DISTRICT COURT OF APPEAL
JANUARY TERM, A.D. 2005
THE STATE OF FLORIDA,
CASE NO. 3D03-2957
TRIBUNAL NO. 94-39462
Opinion filed February 9, 2005.
An Appeal under Florida Rule of Appellate Procedure
9.141(b) (2) from the Circuit Court for Miami-Dade County, Mary
Evans Reese, in proper person.
Charles J. Crist, Jr., Attorney General, and Erin Kinney,
Assistant Attorney General, for appellee.
Before COPE, RAMIREZ and WELLS, JJ.
Evans Reese appeals an order denying his motion to correct
Defendant-appellant was convicted of armed robbery.
conviction was affirmed in 1996.
See Reese v. State, 683 So. 2d
645 (Fla. 3d DCA 1996).
By motion to correct illegal sentence under Florida Rule of
Criminal Procedure 3.800(a), the defendant argues that he was
The trial court correctly denied the
motion because a vindictive sentencing claim cannot be brought
by a motion to correct illegal sentence under Rule 3.800(a).
Wright v. State, No. 3D04-2789 (Fla. 3d DCA opinion filed Jan.
26, 2005); Valencia v. State, 645 So. 2d 1085 (Fla. 3d DCA
1994); see also Boyd v. State, 880 So. 2d 726 (Fla. 2d DCA),
rev. denied, 888 So. 2d 621 (Fla. 2004).
We comment briefly on two recent cases from this court
brought under Rule 3.800(a).
Both cases are distinguishable.
In Ortiz v. State, 884 So. 2d 1086 (Fla. 3d DCA 2004), this
court issued an opinion denying a claim of vindictive sentencing
indication that any procedural objection was raised to the use
of Rule 3.800(a) in that case, and the procedural issue was not
discussed in the Ortiz opinion.
In Smith v. State, 842 So. 2d 1047 (Fla. 3d DCA 2003), this
court issued an opinion which granted relief on a vindictive
sentencing claim which had been brought under Rule 3.800(a).
Again, there is no indication that any procedural objection was
raised to the use of Rule 3.800(a) in that case, and the panel
opinion did not discuss the procedural issue.
A review of this
court’s file in Smith indicates that the Rule 3.800(a) motion
was filed within the two-year time limit for a motion under
3.800(a) motion could have been treated as a timely Rule 3.850
motion, the procedural error had no practical significance in
In this case the defendant’s conviction became final on
direct appeal in 1996.
Since under this court’s precedent the
motion cannot be entertained under Rule 3.800(a), and since the
motion is time-barred if considered under Rule 3.850, it follows
that affirmance is in order here.
We certify direct conflict with Johnson v. State, 877 So.
2d 795 (Fla. 5th DCA 2004).
See Wright v. State, No. 3D04-2789,
slip op. at 2.
Affirmed; direct conflict certified.