Murphy v. State

District Court of Appeal of Florida

Murphy v. State

849 So. 2d 346, 2003 Fla. App. LEXIS 6162, 2003 WL 1966889

CourtDistrict Court of Appeal of Florida

DecidedApril 30, 2003

DocketNo. 2D02-2953

StatusPublished

This text of 849 So. 2d 346 (Murphy v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Murphy v. State, 849 So. 2d 346, 2003 Fla. App. LEXIS 6162, 2003 WL 1966889 (Fla. Ct. App. 2003).

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Opinion

FULMER, Judge.

Stephen Murphy challenges the order of the trial court denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse the trial court’s order and remand for further proceedings.

In his motion, Murphy alleged that he pleaded to trafficking in more than 28 but less than 200 grams of cocaine. He further alleged that the three-year manda[347]*347tory minimum term of imprisonment imposed by the trial court pursuant to section 893.135(1)(b)(1)(a), Florida Statutes (1999), is illegal based on our opinion in Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002). A claim that a mandatory minimum sentence was illegally imposed is cognizable in a rule 3.800(a) motion where the error is apparent on the face of the record. See Sims v. State, 838 So.2d 658 (Fla. 2d DCA 2003); Leath v. State, 805 So.2d 956 (Fla. 2d DCA 2001).

Taylor held that chapter 99-188, Laws of Florida, which provided for the imposition of mandatory minimum prison sentences for certain drug offenses, is unconstitutional because it violates the single subject rule of the Florida Constitution. In denying the motion, the trial court found: “As of April 29, 2002, the Florida Legislature cured the single subject rule violation by reenacting the provisions originally contained in Chapter 99-188.... In so doing, the Florida Legislature provided for the retroactive application of each reenactment to July 1, 1999.” However, in Green v. State, 839 So.2d 748 (Fla. 2d DCA 2003), this court has since held that the reenactment of the sentencing provisions of chapter 99-188 cannot be applied retroactively because this would violate the Ex Post Facto Clauses of the United States and Florida Constitutions.

Murphy alleged that he committed the offense of trafficking in cocaine on July 17, 1999, which is within the Taylor window. See Green, 839 So.2d at 750 n. 1. Murphy has therefore presented a facially sufficient claim. See Sims, 838 So.2d 658. We reverse the order of the trial court and remand for further consideration of Murphy’s claim. If Murphy is correct that the trial court imposed a mandatory minimum pursuant to section 893.135(l)(b)(l)(a) where the offense was committed within the Taylor window, the trial court shall resentence him under the 1997 version of that statute. See Green, 839 So.2d 748. We certify conflict with the Fourth and Fifth District cases with which we disagreed in Green.

Reversed and remanded with instructions.

WHATLEY and SALCINES, JJ., concur.

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FULMER, Judge.

Stephen Murphy challenges the order of the trial court denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse the trial court’s order and remand for further proceedings.

In his motion, Murphy alleged that he pleaded to trafficking in more than 28 but less than 200 grams of cocaine. He further alleged that the three-year manda[347]*347tory minimum term of imprisonment imposed by the trial court pursuant to section 893.135(1)(b)(1)(a), Florida Statutes (1999), is illegal based on our opinion in Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002). A claim that a mandatory minimum sentence was illegally imposed is cognizable in a rule 3.800(a) motion where the error is apparent on the face of the record. See Sims v. State, 838 So.2d 658 (Fla. 2d DCA 2003); Leath v. State, 805 So.2d 956 (Fla. 2d DCA 2001).

Taylor held that chapter 99-188, Laws of Florida, which provided for the imposition of mandatory minimum prison sentences for certain drug offenses, is unconstitutional because it violates the single subject rule of the Florida Constitution. In denying the motion, the trial court found: “As of April 29, 2002, the Florida Legislature cured the single subject rule violation by reenacting the provisions originally contained in Chapter 99-188.... In so doing, the Florida Legislature provided for the retroactive application of each reenactment to July 1, 1999.” However, in Green v. State, 839 So.2d 748 (Fla. 2d DCA 2003), this court has since held that the reenactment of the sentencing provisions of chapter 99-188 cannot be applied retroactively because this would violate the Ex Post Facto Clauses of the United States and Florida Constitutions.

Murphy alleged that he committed the offense of trafficking in cocaine on July 17, 1999, which is within the Taylor window. See Green, 839 So.2d at 750 n. 1. Murphy has therefore presented a facially sufficient claim. See Sims, 838 So.2d 658. We reverse the order of the trial court and remand for further consideration of Murphy’s claim. If Murphy is correct that the trial court imposed a mandatory minimum pursuant to section 893.135(l)(b)(l)(a) where the offense was committed within the Taylor window, the trial court shall resentence him under the 1997 version of that statute. See Green, 839 So.2d 748. We certify conflict with the Fourth and Fifth District cases with which we disagreed in Green.

Reversed and remanded with instructions.

WHATLEY and SALCINES, JJ., concur.

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849 So. 2d 346, 2003 Fla. App. LEXIS 6162, 2003 WL 1966889, Counsel Stack Legal Research, https://law.counselstack.com/opinion/murphy-v-state-fladistctapp-2003.

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