Dominguez v. StateDominguez v. State
Steven Dominguez appeals the order denying his motion to correct illegal sentence, which the postconviction court treated as if filed under Florida Rule of Criminal Procedure 3.800(a). Because the relief Mr. Dominguez seeks is not available unless he moves to withdraw his plea,
In circuit court case number OS-12391, Mr. Dominguez pleaded to the lesser offense of felony battery pursuant to section 784.03, Florida Statutes (2009), in exchange for a sentence of five years as a prison releasee reoffender (PRR). In his motion to correct illegal sentence, he argued that he was illegally sentenced as a PRR because felony battery is neither a qualifying offense for PRR sentencing, see § 775.082(9)(a)(l), Fla. Stat. (2009), nor a forcible felony for purposes of the catchall provision of the PRR statute. The catchall provision allows for PRR sentencing for “[a]ny felony that involves the use or threat of physical force or violence against an individual.” § 775.082(9)(a)(l)(o). Mr. Dominguez relied on Spradlin v. State,
Spradlin, like Mr. Dominguez, was convicted of felony battery under section 784.03(2), which reclassifies simple battery to a third-degree felony upon a second battery conviction. Noting that simple battery constitutes any intentional touching, however slight, the Fourth District held “that a felony battery does not, of necessity, involve the requisite level of physical force or violence contemplated by the PRR catch-all provision.” Id. at 378; accord Johns v. State,
By contrast, felony battery under section 784.041 — which requires that the defendant cause great bodily harm, permanent disability, or permanent disfigurement to the victim — does qualify for PRR sentencing because it cannot be committed without the use of physical force or violence. See Brooks v. State,
Although Mr. Dominguez was designated a PRR as the result of a negotiated plea agreement, “a defendant’s right to challenge an illegal sentence is not waived by the fact that the sentence was the result of a negotiated plea.” Torbert v. State,
he is actually challenging the terms of [the] plea agreement and, thus, the resulting convictions. Because a plea withdrawal is a potential consequence in this case, [the defendant] must seek relief under rule 3.850. In that proceeding, the State will have the option to either agree to a resentencing or withdraw from the plea agreement and proceed to trial on the original charges.
Nedd v. State,
As in Nedd, the relief Mr. Dominguez seeks is not available unless he moves to withdraw his plea. We note that Mr. Dominguez’s motion was appropriately sworn and filed within the two-year limit of rule 3.850; thus, the postconviction court could have treated it as filed under rule 3.850. However, the motion is facially insufficient because Mr. Dominguez does not specifically ask to withdraw his plea. Accordingly, we reverse the postconviction court’s order denying relief under rule 3.800(a) and remand for the postconviction court to consider Mr. Dominguez’s claim
Reversed and remanded.