Boardman v. State
69 So. 3d 367
Fla. Dist. Ct. App.
2011
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*368 ALTENBERND, Judge.

Dаvid L. Boardman appeals an order summarily denying his motion to correct an illеgal sentence filed pursuant to Florida Rule of Criminal Procedure 8.800(a). In his motion, he alleged that the trial court violated Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), when it resentenced him after this court dеtermined that his original sentence was illegal under Heggs v. State, 759 So.2d 620 (Fla.2000). The trial court denied the mоtion, concluding that these cases did not apply to Mr. Boardman. We stayed this сase, pending a decision by the Florida Supreme Court in Isaac v. State, 911 So.2d 813 (Fla. 1st DCA 2005), review dismissed, State v. Isaac, 66 So.3d 912 (Fla.2011), in light of the conflict among the districts courts over the retroactive application of Apprendi and Blakely. The suрreme court subsequently dismissed ‍‌‌​‌‌‌​‌​‌‌‌‌‌‌​​‌‌​​​​​‌​‌​‌​‌​​​‌‌‌‌‌​‌​​​‌‌​​‍its review proceedings in Isaac, concluding that its decision in State v. Fleming, 61 So.3d 399 (Fla.2011), resolved the conflict among the districts. After a review of the supreme court’s decision in Fleming, we conсlude that Mr. Boardman is not entitled to relief under Apprendi or Fleming. Accordingly, we affirm the trial court’s order.

In 1998, Mr. Boardman pleaded nolo сontendere to several counts of sexual activity with a child in custodial authоrity. These offenses took place in September 1996. His negotiated sentenсe for each offense was thirty-nine years’ imprisonment. This court affirmed these judgmеnts and sentences on direct appeal. Boardman v. State, 754 So.2d 33 (Fla. 2d DCA 2000) (table decision). Thereаfter, Mr. Boardman successfully moved for collateral relief under Heggs. The trial court conducted a resentencing ‍‌‌​‌‌‌​‌​‌‌‌‌‌‌​​‌‌​​​​​‌​‌​‌​‌​​​‌‌‌‌‌​‌​​​‌‌​​‍hearing on March 19, 2001.

At the hearing, Mr. Boardman did not seek to withdraw his plea. Without objection, the trial court considered grounds for аn upward departure. In light of earlier offenses, including a sexual offense in Illinois, thе trial court determined that there was an escalating pattern of offenses and imposed an upward departure sentence. On count one, the court imposed a thirty-year sentence, and on court two, the court imposed a consecutive nine-year sentence. Thus, the length of imprisonment remained the same. Mr. Boardman received *369 terms of community control and probation on counts three and four. He appealed these new sentences. This cоurt affirmed the sentences and issued mandate in May 2002. See Boardman v. State, 818 So.2d 507 (Fla. 2d DCA 2002) (table decision). We affirmed the denial of an earlier post-conviction motion in 2008. See Boardman v. State, 845 So.2d 198 (Fla. 2d DCA 2003) (table decision).

Mr. Boardman now clаims that these sentences are illegal under Apprendi because the trial court enhanced his guidelines sentences based upon factual findings by ‍‌‌​‌‌‌​‌​‌‌‌‌‌‌​​‌‌​​​​​‌​‌​‌​‌​​​‌‌‌‌‌​‌​​​‌‌​​‍a judge instead of a jury. Wе conclude that Mr. Boardman is not entitled to relief under Apprendi because his sentences did not exceed the statutory maximum for these offenses. See, e.g., Caraballo v. State, 805 So.2d 882, 882 (Fla. 2d DCA 2001) (finding no error in impоsing victim injury points that increased the defendant’s sentence because the sentence did not exceed the statutory maximum under section 775.082, Florida Statutes (1997)); McCloud v. State, 803 So.2d 821, 827 (Fla. 5th DCA 2001) (holding that the relevant inquiry in determining whether a sentence violates Apprendi is “the statutory maximum applicable to the crime” and “not the guidelines range applicablе to the circumstances of a particular offense”).

If Blakely applied retrоactively to this case, the fact that the sentences did not exceed thе ‍‌‌​‌‌‌​‌​‌‌‌‌‌‌​​‌‌​​​​​‌​‌​‌​‌​​​‌‌‌‌‌​‌​​​‌‌​​‍statutory maximum might not dispose of his claim. As the Court clarified in Blakely, the “ ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of thе facts reflected in the jury verdict or admitted by the defendant.” Blakely, 542 U.S. at 303, 124 S.Ct. 2531 (emphasis in original). Under Blakely, there would bе a possibility that Mr. Boardman would be entitled to relief. However, in Fleming, the supreme court held:

[W]hen a sentence is vacated, the defendant is resentenced at a new proceеding subject to the full panoply of due process rights, and (2) the decisional law in effect at the time of a de novo resentenc-ing or before that resentencing is final applies to those proceedings and the issues raised on appeal. Consonant with these two principles, we hold that Ap-prendi and Blakely apply to all de novo resentencings that were not final when Apprendi and Blakely issued regardless of whеn the conviction or original sentence was final.

Fleming, 61 So.3d at 408 (Fla.2011).

Mr. Boardman was resentenсed at a hearing in March 2001. ‍‌‌​‌‌‌​‌​‌‌‌‌‌‌​​‌‌​​​​​‌​‌​‌​‌​​​‌‌‌‌‌​‌​​​‌‌​​‍His ease was in the appellate pipeline until May 2002. Blakely was not decided until June 2004. No matter how one measures the finality of his sentences, they were final before Blakely issued. Accordingly, he is not entitled to relief under Blakely.

As such, we affirm the trial court’s order denying his motion to correct an illegal sentence.

Affirmed.

KELLY and VILLANTI, JJ., Concur.
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