DIEGO JIMENEZ v. THE STATE OF FLORIDA

• Court: District Court of Appeal of Florida
• Decided: November 1, 2023
• Docket: 2022-1906
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed November 1, 2023. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D22-1906 Lower Tribunal No. F00-38717 ________________

Diego Jimenez, Appellant,

vs.

The State of Florida, Appellee.

An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Carmen Cabarga, Judge.

Law Offices of Michelle Walsh, P.A., and Michelle R. Walsh, for appellant.

Ashley Moody, Attorney General, and David Llanes, Assistant Attorney General, for appellee.

Before EMAS, MILLER and LOBREE, JJ.

EMAS, J. Diego Jimenez has previously filed at least seventeen appeals or

original proceedings stemming from his conviction and sentence in circuit

court case number F00-38717. Here, Jimenez appeals the trial court’s order

denying his “Motion to Correct an Unlawful Sentence” pursuant to Florida

Rule of Criminal Procedure 3.800(a).

However, while styled a motion to correct an illegal sentence, the

motion is in fact a challenge to both the conviction and the sentence. A

motion under rule 3.800(a) is not available where, as here, the defendant

seeks to challenge the validity of the conviction (and, only by extension, the

“legality” of the sentence). See Ramirez v. State, 47 Fla. L. Weekly D1823,

2022 WL 3903532 (Fla. 3d DCA Aug. 31, 2022); Planas v. State, 271 So. 3d

76 (Fla. 3d DCA 2019); Lopez v. State, 2 So. 3d 1057, 1059 (Fla. 3d DCA

2009); Morgan v. State, 888 So. 2d 128, 129 (Fla. 3d DCA 2004)

(acknowledging “a motion to correct illegal sentence is an appropriate

procedure for challenging a sentence, but not a conviction”); Coughlin v.

State, 932 So. 2d 1224, 1226 (Fla. 2d DCA 2006) (holding that “a traditional

double jeopardy challenge attacks both the conviction and, by default, the

sentence, while rule 3.800(a) is limited to claims that a sentence itself is

illegal, without regard to the underlying conviction”).

2 Jimenez could have and should have raised the instant claim on direct

appeal from his conviction and sentence or, if appropriate, by a timely motion

filed pursuant to Florida Rule of Criminal Procedure 3.850. His attempt to

present such a challenge under rule 3.800(a) (which, unlike rule 3.850, has

no time limitation) is unauthorized.

Affirmed.