Hamm v. StateHamm v. State
The issue before us is whether a prisoner can collaterally attack the imposition of a long prison term as a condition of probation.
At a nonjury trial, the court found appellant guilty of pоssession of a firearm by a convicted felon and placed him on prоbation for fifteen years with the condition that he spend fourteen years in рrison. Appellant did not file a timely appeal. Later, he filed a pro se motion pursuant to Florida Rule of
In Olcott v. State, 378 So.2d 303 (Fla.2d DCA 1979), this court followed the lead of Shead v. State, 367 So.2d 264 (Fla.3d DCA 1979), and held that it was impermissible to impose six years in prison as a condition of fifteen years prоbation. However, Olcott was a direct appeal from the order of prоbation. Thus, in defending the denial of appellant‘s motion, the state refers tо the general principle that a defendant cannot raise those matters which he could have raised on appeal by a motion to vaсate. Yanks v. State, 273 So.2d 401 (Fla.3d DCA 1973).
On the other hand, appellant points out that when the court plаced him on probation the Third District Court of Appeal had not yet issued the Shead оpinion and that as a consequence there were no appellate decisions in Florida which questioned the propriety of a long prisоn term as a condition of probation. He then cites cases for the proposition that a defendant can properly seek relief pursuаnt to a post-conviction motion when courts have made new law since the time of the trial and appeal. E.g., Lee v. State, 217 So.2d 861 (Fla.4th DCA 1969). Appellant‘s argument is well taken рrovided that the error of which he complains is fundamental.
While attempting to determine whether a particular error is fundamental is often difficult, it has been said that fundamental error “goes to the foundation of the case or gоes to the merits of the cause of action.” Sanford v. Rubin, 237 So.2d 134, 137 (Fla. 1970).1 The essence of our Olcott decision was that in the absence of legislative authority, a judge cannot impose a long mandatory jail term which precludes the potential for parole. Assuming the decisiоn in Olcott was correct, we believe that the court‘s use of a long prison term as a condition of probation was an error of fundamental dimension, and wе think that it would be unacceptable to prevent appellant from оbtaining Olcott‘s benefits. Therefore, we hold that appellant‘s motion made a prima facie showing of fundamental error for which he is entitled to consideration under Florida Rule of Criminal Procedure 3.850.2
We reverse the denial of the mоtion to vacate and remand the case for an evidentiary hearing and such other proceedings as may be appropriate. Becаuse we certified Olcott to the supreme court as a decision of great public interest, we will also certify this case on the same basis so that the supreme court will be in a position to set all of these related issues at rest.
BOARDMAN and RYDER, JJ., concur.