NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF. IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JANUARY TERM, A.D. 2005 TIMOTHY ANTON TAYLOR, Appellant, vs. THE STATE OF FLORIDA, Appellee. ** ** ** ** ** ** Opinion filed February 23, 2005. An Appeal under Florida Rule of Appellate Procedure 9.141(b) (2) from the Circuit Court for Miami-Dade County, Victoria S. Sigler, Judge. Timothy A. Taylor, in proper person. Charles J. Crist, Jr., Attorney General, and Fleming, Assistant Attorney General, for appellee. Before COPE, WELLS and SHEPHERD, JJ. COPE, J. Timothy Anton Taylor appeals an order denying his motion to correct illegal sentence under Florida Rule of Criminal Angel L. LOWER TRIBUNAL NO. 92-41516 CASE NO. 3D04-1946
Defendant-appellant Taylor was convicted of second degree murder, shooting two into counts an of attempted second degree The murder, and and
sentences were affirmed on appeal in 1995. So. 2d 1202 (Fla. 3d DCA 1995).
Taylor v. State, 659
In 2004, the defendant filed a motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a). argued that the trial court had vindictively sentenced him. successor appealed.2 This court has previously held that a claim of vindictive sentencing cannot be raised by a Rule 3.800(a) motion. “It is judge denied the motion and the defendant He A has
clear that a claim of error leading up to the imposition of sentence does not render the sentence ‘illegal’ for purposes of Rule 3.800(a).” Valencia v. State, 645 So. 2d 1085 (Fla. 3d DCA
1994) (citing State v. F.G., 630 So. 2d 581, 583 (Fla. 3d DCA 1993), opinion adopted, 638 So. 2d 515 (Fla. 1994)) (citation omitted). See also Wright v. State, No. 3D04-2789 (Fla. 3d DCA
opinion filed Jan. 26, 2005); Ey v. State, 884 So. 2d 376 (Fla. 2d DCA 2004); Boyd v. State, 880 So. 2d 726, 727-28 (Fla. 2d DCA), rev. denied, 884 So. 2d 621 (Fla. 2004).
The crime date was December 10, 1992.
Because the trial court clerk did not timely provide the order to the defendant, we conclude that he is entitled to a belated appeal.
We comment briefly on two recent cases from this court which addressed vindictive sentencing claims which had been
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 which had been brought under Rule 3.800(a). There is no
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 Florida Rule of Criminal Procedure 3.850. Since the Rule
3.800(a) motion could have been treated as a timely Rule 3.850 motion, the procedural error had no practical significance in that case. The Valencia decision continues to be controlling. 3.800(a) cannot be used to raise a postconviction Rule of
vindictive sentencing. denied.
The Rule 3.800(a) motion was properly
Treating the defendant’s motion as a motion under Florida Rule of Criminal Procedure 3.850, it is time-barred. The
defendant’s conviction became final in 1995.
The motion was
filed well beyond the time limit for a Rule 3.850 motion. The Fifth District allows a vindictive sentencing issue to be raised by a Rule 3.800(a) motion. So. 2d 795 (Fla. 5th DCA 2004). Johnson. See Johnson v. State, 877
We certify direct conflict with
See Wright, slip op. at 2; Ey, 884 So. 2d at 376
(certifying direct conflict with Johnson). Affirmed; direct conflict certified.