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Thomas v. State

District Court of Appeal of Florida, Fourth District
Nov 30, 2005
914 So. 2d 27 (Fla. Dist. Ct. App. 2005)

Summary

holding that Blakely did not apply retroactively where defendant filed a Rule 3.800 motion, claiming his sentence was illegal under Blakely

Summary of this case from Sims v. State

Opinion

No. 4D05-1530.

October 5, 2005. Rehearing Denied November 30, 2005.

Appeal from the Circuit Court, Fifteenth Judicial Circuit, Palm Beach County, Sandra K. McSorley, J.

Marc S. Thomas, Indiantown, pro se.

No appearance required for appellee.


Appellant, Marc Thomas, appeals the summary denial of his motion to correct illegal sentence, as supplemented, filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm the summary denial of his claim of vindictive sentencing. See Baker v. State, 904 So.2d 505 (Fla. 4th DCA 2005); Benedetto v. State, 895 So.2d 1126 (Fla. 4th DCA 2005) (citing Boyd v. State, 880 So.2d 726 (Fla. 2d DCA 2004), review denied, 888 So.2d 621 (Fla. 2004)).

We also affirm the summary denial of his claim of illegal sentencing under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). We have held previously that the decision does not apply retroactively. See McBride v. State, 884 So.2d 476 (Fla. 4th DCA 2004); see also Paul v. State, 898 So.2d 1128 (Fla. 4th DCA 2005); Burrows v. State, 890 So.2d 286 (Fla. 2d DCA 2004); Burgal v. State, 888 So.2d 702 (Fla. 3d DCA 2004). The Supreme Court of Florida held in Hughes v. State, 901 So.2d 837 (Fla. 2005), that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), did not apply retroactively. It did not address the retroactivity of Blakely, but, on the authority above, we conclude that there is no retroactivity of this decision either. Appellant's sentences became final in 2002, pre- Blakely but post- Apprendi. Since his challenge is based on Blakely, and as it is not retroactive, we conclude that the trial court did not err in rejecting this claim. To the extent the majority opinion in Isaac v. State, 911 So.2d 813 (Fla. 1st DCA 2005), effectively applied Blakely retroactively, we certify conflict and align ourselves with Galindez v. State, 910 So.2d 284 (Fla. 3d DCA 2005), holding that Apprendi and Blakely did not apply retroactively to convictions that became final in 1999, even though resentencing took place in 2003 on a scoresheet error, post- Apprendi. Affirmed.

STEVENSON, C.J., GUNTHER and MAY, JJ., concur.


Summaries of

Thomas v. State

District Court of Appeal of Florida, Fourth District
Nov 30, 2005
914 So. 2d 27 (Fla. Dist. Ct. App. 2005)

holding that Blakely did not apply retroactively where defendant filed a Rule 3.800 motion, claiming his sentence was illegal under Blakely

Summary of this case from Sims v. State

holding that Blakely did not apply to defendant's conviction that became final in 2002, pre- Blakely but post- Apprendi, even though resentencing took place subsequently on a scoresheet error

Summary of this case from Langford v. State

holding Blakely did not apply to the appellant's 2003 resentencing because his sentence became final post-Apprendi and pre- Blakely, Blakely is not retroactive, and certifying conflict with Isaac

Summary of this case from Moline v. State

concluding on the basis ofHughes that Blakely does not apply retroactively

Summary of this case from State v. Fleming
Case details for

Thomas v. State

Case Details

Full title:Marc S. THOMAS, Appellant, v. STATE of Florida, Appellee

Court:District Court of Appeal of Florida, Fourth District

Date published: Nov 30, 2005

Citations

914 So. 2d 27 (Fla. Dist. Ct. App. 2005)

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