Minnick v. State
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NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING
MOTION AND, IF FILED, DETERMINED
IN THE DISTRICT COURT OF APPEAL
OF FLORIDA
SECOND DISTRICT
JAMES LEE MINNICK,
)
)
Appellant,
)
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v.
)
)
STATE OF FLORIDA,
)
)
Appellee.
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)
________________________________ )
Case No. 2D07-3934
Opinion filed October 22, 2008.
Appeal pursuant to Fla. R. App. P.
9.141(b)(2) from the Circuit Court for
Pasco County; Thane B. Covert,
Judge.
STRINGER, Judge.
James Lee Minnick filed a motion to correct illegal sentence pursuant to
Florida Rule of Criminal Procedure 3.800(a), and the postconviction court denied his
motion. We reverse in part and affirm in part.
Minnick was charged on March 1, 2006, with (1) burglary of an
unoccupied dwelling pursuant to section 810.02(3)(b), Florida Statutes (2005), a
second-degree felony, and (2) grand theft. He was charged on March 30, 2006, with
one count of dealing in stolen property. His plea form indicates that he pleaded nolo
contendere to "BE (3rd)" and the grand theft and dealing charges in exchange for five
years as a prison releasee reoffender (PRR).1 "BE (3rd)" apparently refers to "breaking
and entering"—i.e., burglary—at the third-degree felony level. The judgment for the
March 1 charges includes the following notation with respect to the burglary: "Lessor
[sic] burglary (PRR)[,] 810.02(3)(B)[,] 3F."
Minnick filed a motion to correct illegal sentence alleging, first, that he had
accepted a plea for the lesser offense of "burglary of an un-occupied structure," that he
was designated a PRR, and that the lesser offense is not a PRR-qualifying offense. As
such, he urged, his sentence is illegal. The postconviction court denied the motion as to
this issue, ruling that burglary of an unoccupied structure is a PRR-qualifying offense.
Minnick also alleged that convictions for both grand theft and dealing in stolen property
constitute double jeopardy. The court denied this claim, granting leave for Minnick to
file a timely rule 3.850 motion. Finally, Minnick alleged that being advised to accept an
illegal PRR sentence constituted ineffective assistance of counsel. The court did not
address this claim.
As recited above, the record is somewhat contradictory. The judgment
lists the first charge to be sentenced as a "less[e]r," third-degree-felony version of the
count originally charged as burglary of an unoccupied structure, a second-degree
felony, but retains the statute number of the second-degree felony. The plea form
indicates that Minnick was agreeing to plead to burglary at the third-degree-felony level.
Because the only relevant lesser included offense of burglary of an unoccupied
1
§ 775.082(9), Fla. Stat. (2005). PRR sentences bear the same terms of years as
the maximum sentences for the respective felony degrees, compare § 775.082(9)(a)(3)
with § 775.082(3)(b)-(d), but a defendant sentenced as a PRR must serve "100 percent
of the court-imposed sentence," § 775.082(9)(b).
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dwelling2 is burglary of an unoccupied structure, a third-degree felony,3 see Fla. Std.
Jury Instr. (Crim.) 13.1 (listing lesser included offenses), it is clear to us that the latter
offense is the one that Minnick was convicted of and sentenced for.
The postconviction court was incorrect in ruling that burglary of an
unoccupied structure is a valid PRR-qualifying offense. Section 775.082(9)(a)(1),
Florida Statutes (2005), lists the following relevant offenses as qualifying offenses:
armed burglary,4 burglary of a dwelling, and burglary of an occupied structure.5
Burglary of an unoccupied structure is not listed in section 775.082(9)(a)(1).6
Furthermore, Minnick may attack the sentence even though he negotiated for it.7 See
Graham v. State, 813 So. 2d 248 (Fla. 2d DCA 2002); Wallen v. State, 877 So. 2d 737,
738 (Fla. 5th DCA 2004) (noting that defendant's agreement to a certain sentence "does
not bar him from attacking the same as an illegal sentence") (citing Larson v. State, 572
So. 2d 1368 (Fla. 1991)). Because Minnick was sentenced as a PRR in the absence of
a qualifying offense, we reverse the postconviction court's order as to his first claim.
However, because Minnick's plea was negotiated, it is not automatic that
the PRR designation should be stricken. Rather, the State may either agree to a
resentencing in which the PRR designation is stricken with the sentence otherwise
2
§ 810.02(3)(b).
3
§ 810.02(4)(a).
4
§ 775.082(9)(a)(1)(p).
5
§ 775.082(9)(a)(1)(q).
6
Neither are grand theft and dealing in stolen property, the other two offenses of
which Minnick was convicted.
7
We note that the State concedes error on this issue and recommends a reversal.
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unchanged or withdraw from the plea agreement and take Minnick to trial on the original
charges. See West v. State, 818 So. 2d 637, 638 (Fla. 1st DCA 2002) (reversing an
order denying a claim similar to the one at issue here and ruling that "the state will have
the choice either to resentence the appellant or to take the appellant to trial, because
the appellant's sentence was negotiated"); Wallen, 877 So. 2d 737 (similar); cf. Caddo
v. State, 806 So. 2d 520, 522 (Fla. 2d DCA 2001) (delineating the two options in the
direct-appeal context).8 Whichever option is chosen, on resentencing the trial court
shall ensure that the charges, statute numbers, and felony levels are consistent with
one another in the judgment documentation.
We affirm the postconviction court's order as to the double jeopardy issue.
We note also that Minnick's ineffective assistance of counsel claim, not addressed by
the postconviction court, may be cognizable in a motion filed pursuant to rule 3.850.
Reversed in part and affirmed in part, with instructions.
CASANUEVA and LaROSE, JJ., Concur.
8
It may be noted that in some situations in which a defendant has raised a rule
3.800(a) claim when the underlying conviction was based on a negotiated plea, this
court has affirmed the postconviction court, noting that the defendant should raise the
issue via a rule 3.850 motion. See, e.g., Casey v. State, 788 So. 2d 1121 (Fla. 2d DCA
2001) (concerning a claim under Heggs v. State, 759 So. 2d 620 (Fla. 2000)). This is
"because an evidentiary hearing may be necessary to determine whether the State
gave up something in negotiating the plea." Id. at 1122. Here, however, it is already
clear from the record that the State agreed to a reduced charge. As such, there is no
need for an evidentiary hearing.
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