TIVAN JOHNSON v. THE STATE OF FLORIDA

• Court: District Court of Appeal of Florida
• Decided: January 5, 2022
• Docket: 21-1688
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed January 5, 2022. Not final until disposition of timely filed motion for rehearing.

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No. 3D21-1688 Lower Tribunal Nos. F91-21601B & F91-21599A ________________

Tivan Johnson, 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, Cristina Miranda, Judge.

Tivan Johnson, in proper person.

Ashley Moody, Attorney General, and Sandra Lipman, Assistant Attorney General, for appellee.

Before SCALES, HENDON, and MILLER, JJ.

PER CURIAM. Affirmed. See Martell v. State, 676 So. 2d 1030, 1031 (Fla. 3d DCA

1996) (emphasis omitted) (quoting Judge v. State, 596 So. 2d 73, 77 (Fla.

2d DCA 1991) (“[Rule 3.800(a)] is not a vehicle designed to re-examine

whether the procedure employed to impose the punishment comported with

statutory law and due process.”); Thomas v. State, 778 So. 2d 429, 430 (Fla.

5th DCA 2001) (“Whether a sentencing statute is constitutional cannot be

raised for the first time in a Rule 3.800(a) motion. This type of issue, which

seeks a change in the law, must be raised at sentencing and then on direct

appeal.”); Owens v. State, 316 So. 2d 537, 538 (Fla. 1975) (“[T]he exercise

of parole authority is characterized for separation of powers purposes, the

authority is only exercisable to the extent it has been conferred. No parole

authority has been conferred with respect to the first 25 years of

incarceration of one convicted of a capital felony.”); Carrion-Viscay v. State,

478 So. 2d 1192, 1193 (Fla. 3d DCA 1985) (“[T]he sentencing court has the

discretion to impose two consecutive life terms, each sentence including a

twenty-five year minimum mandatory term, for two first-degree murder

convictions.”).