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holding that order granting defendant's motion to correct illegal sentence but not yet resentencing defendant was not final, appealable order
Summary of this case from Wright v. StateOpinion
Case No. 2D18-4940
04-03-2020
Darryl Len MORGAN, Appellant, v. STATE of Florida, Appellee.
Howard L. Dimmig, II, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant. Ashley Moody, Attorney General, Tallahassee, and Allison C. Heim, Assistant Attorney General, Tampa, for Appellee.
Howard L. Dimmig, II, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant.
Ashley Moody, Attorney General, Tallahassee, and Allison C. Heim, Assistant Attorney General, Tampa, for Appellee.
BLACK, Judge.
Darryl Morgan challenges the postconviction court's order denying his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). In the order on appeal, the postconviction court vacated a previous order in which it had granted Morgan's motion and ordered resentencing. At the time that the postconviction court reconsidered Morgan's motion, Morgan's resentencing had not occurred and a change in the law clarified that Morgan's initial sentence was not illegal. Morgan contends that the postconviction court did not have jurisdiction to reconsider its previous order and that we must reverse the order denying his motion and remand for reinstatement of the previous order directing resentencing. We disagree and affirm the order on appeal.
Morgan was a juvenile in 1979 when he was convicted of murder in the second degree and sentenced to life in prison with the possibility of parole after twenty-five years. In September 2016, Morgan filed a rule 3.800(a) motion arguing that he was entitled to resentencing pursuant to Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and Atwell v. State, 197 So. 3d 1040 (Fla. 2016). On January 3, 2017, the postconviction court granted Morgan's motion, ruling that his life sentence was illegal and that he was therefore entitled to be resentenced. The State then filed a notice of appeal but voluntarily dismissed the appeal before it was perfected.
More than a year after the postconviction court had granted Morgan's motion, Morgan still had not been resentenced. His resentencing had been rescheduled multiple times at his request, and it was finally to occur on August 17, 2018. On August 16, 2018, the State filed a motion for reconsideration of the order granting Morgan's rule 3.800(a) motion. The State premised its motion on the argument that Atwell had been receded from in State v. Michel, 257 So. 3d 3 (Fla. 2018), and that therefore Morgan was not in the class of defendants entitled to resentencing pursuant to Miller. Morgan's resentencing was again continued, and after a hearing on the State's motion for reconsideration, the court granted the motion, vacated its previous order, and denied Morgan's rule 3.800(a) motion. The order on appeal was rendered November 30, 2018, more than a year and a half after the initial order granting Morgan's motion had been entered.
Morgan contends that the initial postconviction order granting his motion was a final appealable order and that the State's dismissal of its appeal coupled with the lapse of time in filing the motion for reconsideration rendered the postconviction court without jurisdiction to reconsider its prior ruling and order. Morgan finds support in Simmons v. State, 274 So. 3d 468 (Fla. 1st DCA 2019). Like Morgan, Simmons was a juvenile sentenced to life in prison who filed a rule 3.800(a) motion seeking resentencing based on Miller and Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). The postconviction court granted Simmons’ motion and ordered resentencing. However, before Simmons could be resentenced the postconviction court learned of changes in the law with regard to juvenile sentencing. And "[s]even months after granting Simmons' postconviction motion, the court entered an order rescinding its original order and denying the motion." Simmons, 274 So. 3d at 470. Simmons appealed from that order, and the First District concluded that "[b]ecause the order granting resentencing became final when neither party moved for rehearing or appealed the order, the trial court had no authority to enter a second order rescinding the original order." Id. The First District stated that it "ha[d] twice held that an order on a motion for postconviction relief is final and appealable even when resentencing has not occurred," citing Slocum v. State, 95 So. 3d 911 (Fla. 1st DCA 2012), and Jordan v. State, 81 So. 3d 595 (Fla. 1st DCA 2012), and that "the supreme court has agreed," citing Taylor v. State, 140 So. 3d 526 (Fla. 2014). Simmons, 274 So. 3d at 470.
In Jordan, the First District "addressed for the first time whether a postconviction order granting resentencing is final when resentencing has not yet occurred." Simmons, 274 So. 3d at 470-71. On appeal from an order denying Jordan's rule 3.800(a) motion following the State's motion for reconsideration of the initial order granting Jordan's motion, the First District held that the initial order granting resentencing was final "because it brought the postconviction proceedings to an end" and that the postconviction court lacked jurisdiction to reconsider it where the State's motion was untimely. Jordan, 81 So. 3d at 596. Jordan relied upon State v. White, 470 So. 2d 1377 (Fla. 1985), which addressed rule 3.850 and writs of coram nobis and habeas corpus.
Unlike Jordan and Simmons, Slocum addressed the timeliness of an appeal from an order denying in part a motion for postconviction relief filed pursuant to rule 3.850 as it related to attacks on Slocum's convictions and granting the motion as it related to Slocum's sentences. Slocum, 95 So. 3d at 912.
Like the supreme court's White decision, the Taylor decision relied upon by the First District arose in the context of a rule 3.850 motion for postconviction relief. There, the supreme court held "that an order disposing of a postconviction motion which partially denies and partially grants relief is a final order for purposes of appeal, even if the relief granted requires subsequent action in the underlying case, such as resentencing." 140 So. 3d at 528. The court went on to hold that its conclusion was "consistent with [the] recent amendments to Florida Rule of Criminal Procedure 3.850, effective July 1, 2013, which added subsection (f)(8)(C), stating that ‘[t]he order issued after the evidentiary hearing shall resolve all the claims raised in the motion and shall be considered the final order for purposes of appeal.’ " Id. at 529 (second alteration in original) (quoting In re Amendments to the Fla. Rules of Criminal Procedure & the Fla. Rules of Appellate Procedure, 132 So. 3d 734, 750 (Fla. 2013) ). Unlike rule 3.850, rule 3.800 does not state that an order resolving "all the claims raised in the motion" shall be a final order.
We note that subsequent to the issuance of Simmons, and in reliance on it, the Fourth District issued Jones v. State, 279 So. 3d 172 (Fla. 4th DCA 2019). The Fifth District has also followed Simmons. See Magill v. State, 287 So. 3d 1262 (Fla. 5th DCA 2019). But see Maysonet v. State, 722 So. 2d 230, 231 (Fla. 5th DCA 1998) (dismissing appeal from order granting in part and denying in part rule 3.800(a) motion where resentencing had not occurred and concluding that "there is additional judicial labor that will occur").
This court has held that a " rule 3.800(a) motion d[oes] not create a new, separate proceeding. Instead, it is a motion filed in continuation of the original criminal proceeding." State v. Rudolf, 821 So. 2d 385, 386 (Fla. 2d DCA 2002) ; see also Stewart v. State, 647 So. 2d 219, 220 (Fla. 2d DCA 1994) (dismissing appeal from order denying in part and granting in part rule 3.800(a) motion where resentencing had not yet occurred and concluding that "it is clear that the trial court's judicial labor has not yet ended because [the appellant] has not been resentenced ... and ... only after the [postconviction] court resentences [the appellant] will we have the jurisdiction to determine whether the ‘final and irreparable effect’ of any new sentence violates his right to the imposition of a legal sentence" (footnote omitted)). We have further held that an order granting a rule 3.800(a) motion "is essentially a nonfinal order entered after the entry of an appealable final order" and "that Florida Rule of Appellate Procedure 9.130(a)(4), permitting appeals of nonfinal orders entered after final orders, does not apply in this criminal context." Rudolf, 821 So. 2d at 386. "To the extent that section 924.066(2) ... seeks to confer jurisdiction for district courts to review adverse rulings granting or denying collateral or postconviction relief, that statute can apply constitutionally only to final orders." Id. Rudolf agreed with State v. Delvalle, 745 So. 2d 541, 542 (Fla. 4th DCA 1999) :
[W]hile the trial court has granted the Defendant's 3.800(a) motion, it has not and will not grant the Defendant any collateral relief until it resentences him. The order granting the Defendant's 3.800(a) motion is not a final order, as judicial labor, i.e., resentencing, is still required. Until the Defendant is resentenced, this Court cannot properly determine whether the trial court has erred. Accordingly, the State's appeal is dismissed without prejudice to the State to timely appeal the resentencing order.
The Third District has likewise held that in the context of a rule 3.800 motion "judicial labor is not completed until the defendant is resentenced," such that "[t]he time for appeal d[oes] not begin to run until the resentencing order [i]s entered." State v. Huerta, 38 So. 3d 883, 884-85 (Fla. 3d DCA 2010) ; see also Adams v. State, 949 So. 2d 1125, 1126 (Fla. 3d DCA 2007).
The conclusions in Rudolf, Huerta, and Delvalle are supported by the language of rule 9.140(c)(1), listing the orders that the State may appeal to include orders "granting relief under Florida Rules of Criminal Procedure 3.801, 3.850, 3.851, or 3.853." Fla. R. App. P. 9.140(c)(1)(J). Notably absent is the right to appeal from a rule 3.800(a) order. "The Florida Supreme Court has explained that ‘the State's right to appeal an adverse ruling is a limited one that is strictly governed by statute, rule and overriding constitutional principles.’ The State's right to appeal in criminal cases should be construed narrowly." State v. Knight, 931 So. 2d 254, 255 (Fla. 2d DCA 2006) (quoting State v. Gaines, 770 So. 2d 1221, 1227 n.8 (Fla. 2000) ). Rule 9.140 also permits the State to appeal from orders "imposing an unlawful or illegal sentence or imposing a sentence outside the range permitted by the sentencing guidelines; ... imposing a sentence outside the range recommended by the sentencing guidelines; ... or as otherwise provided by general law for final orders." Fla. R. App. P. 9.140(c)(1)(M), (N), (P). The rule clearly contemplates that the State may appeal from a rule 3.800(a) order after resentencing where the sentence is unlawful, illegal, or outside the range of the guidelines. And the provision permitting appeals "as otherwise provided by general law for final orders" is inapplicable to pre-resentencing orders on rule 3.800(a) motions under this court's analysis in Rudolf.
The supreme court's Taylor opinion does not indicate that Rudolf, Huerta, and Delvalle are no longer good law; in fact, despite being cited in the Fifth District opinion quashed by Taylor, Taylor did not cite or address the Rudolf or Huerta opinions. Compare Taylor, 140 So. 3d at 527-29, with Taylor v. State, 96 So. 3d 989, 992 (Fla. 5th DCA 2012). Nonetheless, it appears that at least the Fourth District has determined that Delvalle is no longer good law in light of Taylor because it has recently relied upon Simmons and held that with regard to a rule 3.800(a) motion an "order granting resentencing became final and non-appealable when neither party moved for rehearing or appealed. After that, the circuit court lacked jurisdiction to vacate that order." German v. State, 284 So. 3d 572, 573 (Fla. 4th DCA 2019) (addressing a rule 3.800(a) motion and order); see also State v. West, 262 So. 3d 818, 819 (Fla. 4th DCA) ("The State appeals an order granting the defendant's motion to correct an illegal sentence. We reverse."), review denied, No. SC19-236, 2019 WL 2428452 (Fla. June 11, 2019).
We recognize that Taylor states that "postconviction proceedings and resentencing proceedings are separate, legally discrete proceedings," Taylor, 140 So. 3d at 529, but we find it distinguishable and not controlling over the issue presented in this case. We also do not believe that Taylor implicitly overruled Rudolf, Huerta, and Delvalle despite its broad references to "postconviction orders" and resentencing. Taylor addressed rule 3.850 collateral attacks on convictions rather than only illegal sentences under rule 3.800(a). We further note that, although it predates Taylor, the supreme court in State v. Gaines, 770 So. 2d 1221, 1224 (Fla. 2000), cited Delvalle for its holding that rule 3.800(a) orders granting relief are not final appealable orders where "judicial labor, i.e., resentencing, is still required." See also Farina v. State, 191 So. 3d 454, 459 (Fla. 2016) (Canady, J., dissenting) (citing Delvalle for same).
Under Rudolf, the State could not appeal the order granting Morgan's rule 3.800(a) motion until resentencing had occurred. Thus, the postconviction court retained jurisdiction over the case. Moreover, the order granting the motion was a nonfinal order, and courts may reconsider their interlocutory, nonfinal orders at any time they have jurisdiction and before a final judgment or order has been rendered. Here, the court was within its authority to reconsider its ruling on Morgan's motion until a final order—after resentencing—had been rendered. See Fla. R. Crim. P. 3.192 ("Nothing in this rule precludes the trial court from exercising its inherent authority to reconsider a ruling while the court has jurisdiction of the case."); see also Silvestrone v. Edell, 721 So. 2d 1173, 1175 (Fla. 1998) ("[T]he trial court retains inherent authority to reconsider and, if deemed appropriate, alter or retract any of its nonfinal rulings prior to entry of the final judgment or order terminating an action ...."); Taufer v. Wells Fargo Bank, N.A., 278 So. 3d 335, 336-37 (Fla. 3d DCA 2019) ("Motions for reconsideration apply to ‘nonfinal, interlocutory orders, and are based on a trial court's "inherent authority to reconsider and, if deemed appropriate, alter or retract any of its nonfinal rulings prior to entry of the final judgment or order terminating an action ...." ’ " (quoting Seigler v. Bell, 148 So. 3d 473, 478-79 (Fla. 5th DCA 2014) )).
We note that the First District concluded that "[b]ecause Simmons sought postconviction relief under rule 3.800(a), rule 3.192 did not authorize the postconviction court to reconsider its earlier ruling." Simmons, 274 So. 3d at 471-72. The rehearing provisions of rule 3.192 clearly do not apply to postconviction proceedings: "This rule shall not apply to postconviction proceedings pursuant to rule 3.800(a), 3.801, 3.850, 3.851, or 3.853." Fla. R. Crim. P. 3.192. However, the final statement of the rule, addressing reconsideration of interlocutory rulings, refers to "inherent authority" and further states that nothing in the rule—including its inapplicability to postconviction proceedings—is an exception to the court's inherent authority: "Nothing in this rule precludes the trial court from exercising its inherent authority to reconsider a ruling while the court has jurisdiction of the case." Id.
We affirm the order denying Morgan's rule 3.800(a) motion upon reconsideration based on the motion filed by the State. Under Rudolf, the State could not appeal until resentencing had occurred and a final order rendered. We continue to hold that an order granting a rule 3.800(a) motion is not a final appealable order. Thus, the postconviction court had jurisdiction at the time the State sought reconsideration of the ruling; the ruling was an interlocutory order which the court had inherent authority to reconsider upon request by a party. And at the time of the request for reconsideration, the law had changed such that Morgan was not entitled to the resentencing originally granted and therefore the motion to correct illegal sentence was properly denied.
Morgan does not dispute that the law as it currently stands does not permit resentencing for defendants like Morgan who received life sentences with the possibility of parole. See Franklin v. State, 258 So. 3d 1239, 1241 (Fla. 2018) ("Florida's statutory parole process fulfills Graham's requirement that juveniles be given a ‘meaningful opportunity’ to be considered for release during their natural life based upon ‘normal parole factors,’ as it includes initial and subsequent parole reviews based upon individualized considerations before the Florida Parole Commission that are subject to judicial review." (citations omitted)), cert. denied, Franklin v. Florida, ––– U.S. ––––, 139 S. Ct. 2646, 204 L.Ed.2d 291 (2019). We therefore certify conflict with Jordan, Simmons, Jones, Magill, and the cases which rely upon them to conclude that orders granting rule 3.800 motions are appealable by the State prior to resentencing and that where no appeal is taken the trial court loses jurisdiction to reconsider its ruling.
Affirmed; conflict certified.
VILLANTI and ROTHSTEIN-YOUAKIM, JJ., Concur.