View Full Version : Motion to correct illegal sentence denied


carliecurtis
01-27-2009, 11:03 PM
We hired an attorney and she filed a motion to correct an illegal sentence. However, after she filed it, it sat in the Pinellas County FL. Clerk of courts office in a pile for about 6 months while I continuously attempted to contact the attorney we hired. She never returned phone calls, never responded to emails, and frequently (actually, constantly) her phone tells us her "voice mailbox is full" so we cannot even leave a message.

Well I decided to call the Judge's assistant who would be presiding over the case to see where they were with the motion. Guess what? The Judge never even GOT the motion. The JA advised me to contact The Clerk of Courts (as they were the ones who would direct it to the judge) and see when it was sent. So I called them. The woman who answered let me know that it was on "a pile on her desk" yet recognized the name right away, and assured me it was because they were so backlogged, but she faxed it to the judges chambers that afternoon. Meanwhile, I am frantically calling the attorney we hired--again to no avail-- voicemail full.

Three months later--with nothing sent to me, or my husband--I look for the status of the motion on the clerk of courts website. DENIED. I call the Clerk, and they advise me a copy has been sent to the attorney (who in our original aggreement was to take steps in the event of a denial) and that my husband was sent a copy. He never got it. It has been since Sept. 12th 2008, and possibly too late to file another.

This Attorney still refuses to respond to my phone calls, or emails. I want my money back! LOL! But I guess the 2500.00 we paid her was just for her to draft up the motion.

And the MOTION--- welll, this will really knock your socks off--and I still have no clue as to why it was denied. But here goes.

My baby was sentenced in 1993 to 15 years, with 10 years probation. In 1999, he was released due to gain time awards. In 2001, he got a technical violation for a dirty urine. At that time, he was in front of a judge. The judge said, "The court will revoke the previous probation, adjudicate you guilty of the original offenses,. Sentence is nine years Florida State Prison, credit for time served." (I am looking at the motion, which includes the court stenographers' recordings of the Judge's 2001 conversation with my husband and his then (also loser) attorney, and only adding the most relevant ones for you'all to read).

Now that's all fine and good. It's clear from the Judge's comments to Andy throughout the procceedings that his intent was to reverse the original 15 year sentence, remove the probation, and give him credit for the seven years he had done before coming out in 1999. Here's an example of what the judge said that supports this: "If he goes back, even for the original 15, he's going to serve all the time that's left because that's the way they (DOC) are doing it on good and gaintime. So anything he does, even if we cut him a break on this positive test, he's on the hook for whatever the time is he didn't serve, right?...I would mitigate it down as far as I can and say go serve what's left on that..I'd resentence him to nine, and say go fight with the DOC on the gaintime you're goning to get and not have this probation hanging over your head.... And I would be willing to resolve it (the tech violation) for that... He's actually served almost seven. So the worst he would have left to do would be two, and he wouldnt have the probation hanging over his head. The dispositional understanding would be nine years, credit for time already served, including the prior DOC sentence. At the very least, he's going to get credit day for day for serving in the DOC. That's the worst he can do".

So--now the actual SENTENCE:

There are three counts, and on page one it says:
The defendant is commited to the DOC.
To be imprisoned for a term of NINE YEARS

Under Special Provisions it says:
Please see the last page of this document for other provisons.

Page two covers the second count.
Page three covers the third.
Page four says:
Other Provisions (continued)
Jail CRedit: It is further ordered that the defendant shall be allowed a total of 360 days as credit for time incarcerated before imposition of this sentence.
Prison Credit: It is further orderd that the defendent shall be allowed credit for all time previously served on this count in the DOC prior to resentencing.

Hmmm. Prior to the impostion of the sentence in 2001, he was entitled to 360 days jail time, plus 2,038 actual days in DOC custody = 2, 398 days credit on all three counts. Assuming 365 days a year, plus one day for 2 leap years, would yield a total atual day for day sentence of 3,294 days. As of the date of the plea (November 27th, 2001) without ANY good or gaintime, would only have had to serve an additional 896 days. (a little more than the two years the judge was thinking). IN actuality-- as of March 1, 2007--he served a grand total of 4,303 days in custody which is 11 years and 288 days, exceeding the nine years he was resentenced to in 2001. This, folks IS legal kidnapping. His scheduled termination date as of today is May 23, 2011.

Please someone, direct me to someone who can help. Two attorneys haven't been able to do anything. The motion was denied by a group of "staff attorneys" who work for the county (They review motions all day, and determine if the judge should see them or not). I have no more money to spend at this time, and this is just NOT right. Please, Please help.

UPDATE: I just did the math, and not counting the time he was out, he has done a total of 12 years, 103 days on a nine year sentence. Its as if they are still holding him to the original 15 year sentence. But their website shows he was sentenced to nine.

Mark2008
01-28-2009, 05:16 AM
I read your post three times and am still confused. I applaud you for excellent record keeping. You may well have a case, but it's hard to figure out from the way you wrote this.

What was the original sentence? Was it 15 years? Or 10 years probation? Or something else?

The dude's been locked up from 1993-1999 AND from 2001-NOW?!?!!? On the SAME charge??? Something smells like a rat here.

Mark2008
01-28-2009, 05:17 AM
But yeah, your attorney sounded pretty worthless. At the least I would file a written complaint with the state bar association. She might not lose her license, but maybe it will make her sit up and take notice (kind of like probation for attorneys).

carliecurtis
01-28-2009, 07:05 AM
I read your post three times and am still confused. I applaud you for excellent record keeping. You may well have a case, but it's hard to figure out from the way you wrote this.

What was the original sentence? Was it 15 years? Or 10 years probation? Or something else?

The dude's been locked up from 1993-1999 AND from 2001-NOW?!?!!? On the SAME charge??? Something smells like a rat here.


Yeah, a RAT named DOC. :p

Originally he was given 15 years plus 10 years probation for three second degree felonies. He served almost 7. He was released for gain time allowance in 1999, got a dirty urine in 2001. Went in front of a judge, and the judge RE-sentenced him to nine years, giving him credit for time already served, and no probation. (It's all in the sentence that I am looking at--an official court copy). The judge saying himself that "The worst he could do would be two years." (This was in November 2001.)

Somehow, the DOC is reading it as the judge giving him nine years on TOP of the original 15, that's all I can figure out. They have given no credit for the seven he originally served.

There must be a procedure for getting someone in higher authority at the DOC to at least take a LOOK at the sentencing sheet.

ANd yes, I need to find out how to report this attorney. I just tried phoning her again, and get "mailbox is full." unable to leave message.

Yeah Mark-- all this on the same charges that are running concurrently. His VOP was a technical. No new charges, no DR's even.

moma k
01-28-2009, 10:52 PM
Im so sorry carlie,,its unreal what a bad lawyer coupled with the doc can do,,alot of damage and confusion,,good luck to you and your husband,,people here have always given me good advice,,

Mark2008
01-29-2009, 01:14 AM
Ok, I think I am starting to understand here.

You said he has three second-degree felonies. That's the key. OK, so each charge has to be sentenced separately. Sounds like he got 15 years for one (or two) of the charges and 10 years probation for the other charge(s). So he completes 7 years of the 15 and gets paroled. Eight years left outstanding on that one. Then he gets his 10-year probation revoked on the other charge(s) and gets a nine-year sentence for that one. Well, the time served earlier on the other charge(s) will count for THEM, but not for the NEW sentence on charge #3. He'll have to start that from scratch in 2001.

Hopefully, you got the parole revoked, too, so that the two sentences can run concurrent, so that by the time charge #3 is expired, charges #1 and #2 will be also. I'm guessing that will come somewhere around 2010 or so.

It's really hard to know without looking at the paperwork, but that's my best guess.

It's a STRANGE way to handle things, but probably not "illegal". I would NEVER agree to be on probation while inside prison.... might as well serve all of your charges concurrent. Only exception is if you were potentially facing one super-long sentence that would exceed all the others.

carliecurtis
01-29-2009, 07:27 AM
Ok, I think I am starting to understand here.

You said he has three second-degree felonies. That's the key. OK, so each charge has to be sentenced separately. Sounds like he got 15 years for one (or two) of the charges and 10 years probation for the other charge(s). So he completes 7 years of the 15 and gets paroled. Eight years left outstanding on that one. Then he gets his 10-year probation revoked on the other charge(s) and gets a nine-year sentence for that one. Well, the time served earlier on the other charge(s) will count for THEM, but not for the NEW sentence on charge #3. He'll have to start that from scratch in 2001.

Hopefully, you got the parole revoked, too, so that the two sentences can run concurrent, so that by the time charge #3 is expired, charges #1 and #2 will be also. I'm guessing that will come somewhere around 2010 or so.

It's really hard to know without looking at the paperwork, but that's my best guess.

It's a STRANGE way to handle things, but probably not "illegal". I would NEVER agree to be on probation while inside prison.... might as well serve all of your charges concurrent. Only exception is if you were potentially facing one super-long sentence that would exceed all the others.


Wow Mark! You made something that makes no sense make sense! :D However, all three sentences were to run concurrently. It says so on all the sentencing pages. Originally he had 15 on all three, (to run concurrent) and then when he violated, the judge dropped the 15 down to 9 (the minimum) and revoked the probation. He also stipulated that he would get credit for time served. Which would have been almost 7 years. This hasn't happened. In the court transcripts, my husband asked the judge, "So, basically I get credit for the seven I already did, and I go back and only have to do two more years?" To which the judge replied, "That's correct."

I wish this did make some kind of sense, but the opinion of the courts (who have denied this motion) is that the sentence as it stands IS legal, but that they cannot force the FL DOC to read it differently. So my question is--who polices the FL DOC?

carliecurtis
01-29-2009, 07:47 AM
Im so sorry carlie,,its unreal what a bad lawyer coupled with the doc can do,,alot of damage and confusion,,good luck to you and your husband,,people here have always given me good advice,,


Thanks so much Moma K for your support. I've been lurking around here for awhile now, but have only recently decided to post, and to share my experience with others. I really appreciate all the support people give one another on this site--and have found that as far as the public's negative perceptions and prejudices go, people here are the only one's who really understand, and are the most supportive. I didn't realize until recently how much I needed that. :)

Mark2008
02-02-2009, 08:37 AM
I'd really have to read the legal papers in order to have a better idea of what the charges were and the sentence for each. it should be clearly spelled out however.

It sounds like he IS getting credit for the seven years served on the 15-year sentence. I actually got retroactive credit on my sentence years ago, but that's rare. The DA wanted to get rid of me and I was going to squeeze her for every last tidbit I could before I signed myself away.

As for who policies the DOC? Well, they have governing hierachy, all the way up to the executive director. Beyond that, the state legislature. So, you might find it worth your while to write or call your state representative or senator.

Dylmopriv
02-15-2009, 10:47 PM
Is there anyway you could get the appeal to the supreme court of Florida? That is what my boyfriend is currently doing, as his motion to coorec illegal sentence was denied also, and the judge had no reasoning for it. The laywer he has said most of the time, if the judge put no reason for denial, that the supreme court will hear it. But, that's here in Texas. Not sure how it works in other states!

reddgurl2005
06-28-2010, 07:25 PM
I am going through basically about the same thing with my son in FL. D.O.C. , He is serving a 4 year sentence for eluding the police in 2005. He completed 2 years, yet violated felony probation afterwards by not keeping in contact, now here's the thing, by law in the state of Florida DOC has to credit him his 517 days served in jail, the Judge in Brevard County even stated this during sentencing, yet.....nothing ....and the DOC's website still have him serving until 2012, This is happening to many prisoners, and I hate it for all of them. I don't know what else to do....My son has filed to correct the sentence, it was denied, filed to mitigate & modify, that was denied, so now he filed the motion to allow jail credit, thats been pending now since May 11th, 2010....Who would I contact in the Higher Courts about this ? The clerk keeps telling me again and again well, the cases are being reviewed by the Judge's Attorneys, we don't know when it will get to the Judge for reviews. They make you want to just give up!!, But when it's your family, and especially your baby boy, who does that?????

Colorado_Lawyer
06-28-2010, 10:11 PM
Here is a suggestion:

File a writ of mandamus in the Florida Supreme Court for an order to compel the lower court to rule on your motion. If the trial court then denies the motion, then appeal.

If you continue to be ignored, then file a writ of habeas corpus in the US District Court on the theory that the DOC is not crediting him with time he already served and his continued incarceration is illegal and in violation of the 14th Amendment guarantee of due process of law (not that the original conviction and sentence were unconstitutional). Allege that you made reasonable efforts to exhaust your state court remedies, but were ignored, and the continued failure by the state courts to address the issue or even rule in a timely manner is another violation of the 14th Amendment.

This is what I would do if this happened in Colorado. We have the same problem of state trial courts just sitting on motions and doing nothing for months, even years. When a Writ of Mandamus is filed in the Colorado Supreme Court, the Supreme Court usually issues a ruling denying the writ without prejudice with leave to file if the trial court does not rule within 120 days. This usually gets the trial court judge off of his butt.

Paralegal USA
06-29-2010, 06:45 AM
Here is a suggestion: File a writ of mandamus in the Florida Supreme Court for an order to compel the lower court to rule on your motion. If the trial court then denies the motion, then appeal.

In Florida, a writ of mandamus to compel a trial court to rule should be filed in the appropriate District Court of Appeal versus the State Supreme Court.

If you continue to be ignored, then file a writ of habeas corpus in the US District Court on the theory that the DOC is not crediting him with time he already served and his continued incarceration is illegal and in violation of the 14th Amendment guarantee of due process of law (not that the original conviction and sentence were unconstitutional). Allege that you made reasonable efforts to exhaust your state court remedies, but were ignored, and the continued failure by the state courts to address the issue or even rule in a timely manner is another violation of the 14th Amendment.

The problem with going to the federal district court on habeas is the time it takes for the district court to rule. By the time it did, likely is he would have maxed out his sentence.

I am going through basically about the same thing with my son in FL. D.O.C. , He is serving a 4 year sentence for eluding the police in 2005. He completed 2 years, yet violated felony probation afterwards by not keeping in contact, now here's the thing, by law in the state of Florida DOC has to credit him his 517 days served in jail, the Judge in Brevard County even stated this during sentencing, yet.....nothing ....and the DOC's website still have him serving until 2012, This is happening to many prisoners, and I hate it for all of them. I don't know what else to do....My son has filed to correct the sentence, it was denied, filed to mitigate & modify, that was denied, so now he filed the motion to allow jail credit, thats been pending now since May 11th, 2010....Who would I contact in the Higher Courts about this ? The clerk keeps telling me again and again well, the cases are being reviewed by the Judge's Attorneys, we don't know when it will get to the Judge for reviews. They make you want to just give up!!, But when it's your family, and especially your baby boy, who does that?????

My suggestion would be to retain counsel for the filing of another Rule 3.800 motion to correct. Have counsel first obtain sentencing transcripts and attach to motion in order to show the judge that pre-sentence jail time credit was ordered applied at the time of sentencing. The sentencing judge, or any other presiding judge, would then be hard pressed not to order awarding of those credits.

Understandable is that retaining an attorney for this purpose might be unpalatable, the fact of the matter is that doing so would provide the best chance for expedited resolution to your satisfaction. If an attorney charged you, say, $2,500 for the motion (about average for your area of Florida), based on the 517 days owed, you are looking at less than $5.00/day to have him home.

Should you want or need an attorney referral, feel free to PM me and I will be happy to give you the name and contact information for a good attorney in your area.

lin787
07-19-2010, 04:52 PM
Why cant someone ask the Judge to clarify what he ordered? There is something about the Judge dropping the 15 yr sentence and revoking probation that does not sound right.


I thought
Florida did not have probation?

reddgurl2005
07-26-2010, 06:10 PM
Why cant someone ask the Judge to clarify what he ordered? There is something about the Judge dropping the 15 yr sentence and revoking probation that does not sound right.


I thought
Florida did not have probation?

Have'nt you heard the old saying around here,
''Visit Florida while on Vacation, end up in jail and some probation":eek:

reddgurl2005
07-26-2010, 06:19 PM
In Florida, a writ of mandamus to compel a trial court to rule should be filed in the appropriate District Court of Appeal versus the State Supreme Court.



The problem with going to the federal district court on habeas is the time it takes for the district court to rule. By the time it did, likely is he would have maxed out his sentence.



My suggestion would be to retain counsel for the filing of another Rule 3.800 motion to correct. Have counsel first obtain sentencing transcripts and attach to motion in order to show the judge that pre-sentence jail time credit was ordered applied at the time of sentencing. The sentencing judge, or any other presiding judge, would then be hard pressed not to order awarding of those credits.

Understandable is that retaining an attorney for this purpose might be unpalatable, the fact of the matter is that doing so would provide the best chance for expedited resolution to your satisfaction. If an attorney charged you, say, $2,500 for the motion (about average for your area of Florida), based on the 517 days owed, you are looking at less than $5.00/day to have him home.

Should you want or need an attorney referral, feel free to PM me and I will be happy to give you the name and contact information for a good attorney in your area.
Thank you for the info, I was able to contact an attorney, she is visiting me tomorrow, as we are to sign the legal paperwork for her to get started, I am also interested in finding out if there are legal grounds to make the state attorney's here pay for ruining my then 17 year old son's life with the bogus charges of Robbery with the intent to kill a convenience store operator, all false charges, yet this is why he was pulled over!!, he would'nt be in prison now if that would'nt have happened. Another young mans life has been ruined. Something needs to be changed and done about the way the deputies and the state attorneys charge you with bogus charges that take more than a year to figure out that they can't file on them e.g., nolle pros, cause the person is innocent of the extreme charges. uuuuuggggggghhhhh!!!!!! I WANT TO SCREAM:angry: