text:
    THE FLORIDA BAR RE AMENDMENT TO RULES OF CRIMINAL PROCEDURE (RULE 3.850).
    No. 65277.
    Supreme Court of Florida.
    Nov. 30, 1984.
    Randall B. McDonald, Chairman, Bartow, for Criminal Procedure Rules Committee, petitioner.
    Raymond L. Marky, Asst. Atty. Gen., Tallahassee, on behalf of the Attorney General of the State of Florida, interested party-
   PER CURIAM.

We have for consideration an amendment to Rule of Criminal Procedure 3.850. The Florida Bar opposes the amendment.

Appended to this opinion is the amended and new Rule of Criminal Procedure 3.850. Deletions are indicated by the use of struck-through type. New text is indicated by underscoring. All rules and statutes in conflict with this rule are hereby superseded as of the effective date of the rule. The 1984 Committee Note is not adopted by the Court. This rule shall become effective January 1, 1985, at 12:01 A.M. The two year time limitation begins to run when the judgment and sentence become final.

It is so ordered.

BOYD, C.J., and ADKINS, OVERTON, ALDERMAN, McDONALD, EHRLICH and SHAW, JJ., concur.

RULE 3.850 — MOTION TO VACATE, SET ASIDE OR CORRECT SENTENCE; HEARING; APPEAL.

A prisoner in custody under sentence of a court established by the laws of Florida claiming the right to be released upon the ground that the judgment was entered or that the sentence was imposed in violation of the Constitution or Laws of the United States, or of the State of Florida, or that the court was without jurisdiction to enter such judgment or to impose such sentence or that the sentence was in excess of the maximum authorized by law, or that his plea was given involuntarily, or the judgment or sentence is otherwise subject to collateral attack, may move the court which entered the judgment or imposed the sentence to vacate, set aside or correct the judgment or sentence.

A motion to vacate a sentence which exceeds the limits provided by law may be filed at any time. No other motion shall be filed or considered pursuant to this rule if filed more than two years after the judgment and sentence become final unless it alleges (1) the facts upon which the claim is predicated were unknown to the movant or his attorney and could not have been ascertained by the exercise of due diligence, or, (2) the fundamental constitutional right asserted was not established within the period provided for herein and has been held to apply retroactively.

Anyone adjudicated guilty prior to January 1, 1985, shall have until January 1, 1986, to file a motion in accordance with this rule.

A motion for such relief may be made at any time. The motion shall be under oath and include the following information:

(a) The judgment or sentence under attack and the court which rendered same;

(b) Whether there was an appeal from the judgment or sentence and the disposition thereof;

(c) Whether a previous' post-conviction motion has been filed, and if so, how many;

(d) If a previous motion or motions have been filed the reason or reasons why the claim or claims in the present motion were not raised in the former motion or motions.

(4) (e) The nature of the relief sought:

(e) (f) A brief statement of the facts (and other conditions) relied upon in support of the motion.

This rule does not authorize relief based upon grounds which could have or should have been raised at trial and, if properly preserved, on direct appeal of the judgment and sentence.

T-he-G&urt will refuse to receive any motion ■filed-pursuant-to- this rule -whiGh-is-not-in substantial compliance with the requirements hereof. Upon filing of a Rule 3.850 motion, the clerk shall forward the motion and file to the court.

If the motion and the files and records in the case conclusively show that the prisoner is entitled to no relief, the motion shall be denied without a hearing. In those instances when such denial is not predicated upon the legal insufficiency of the motion on its face, a copy of that portion of the files and records which conclusively shows that the prisoner is entitled to no relief shall be attached to the order. Unless the motion and the files and records of the case conclusively show that the prisoner is entitled to no relief, the court shall order the State Attorney to file an answer or other pleading within the period of time fixed by the court or to take such other action as the judge deems appropriate. The answer shall respond to the allegations of the motion. In addition it shall state whether the movant has used any other available state remedies including any other post-conviction motion under this rule. The answer shall also state whether an evidentiary hearing was accorded the movant. If the motion has not been denied at a previous stage in the proceedings, the judge, after the answer is filed, shall determine whether an evidentiary hearing is required. If an evidentiary hearing is not required, the judge shall make appropriate disposition of the motion. If an evidentiary hearing is required, the court shall grant a prompt hearing thereon and the court shall cause notice thereof to be served upon the prosecuting attorney of the court state attorney, g-r-ant a prompt hearing thereon, determine the issues and make findings of fact and conclusions of law with respect thereto. If the court finds that the judgment was rendered without jurisdiction, or that the sentence imposed was not authorized by law or is otherwise open to collateral attack, or that there has been such a denial or infringement of the constitutional rights of the prisoner as to render the judgment vulnerable to collateral attack, the court shall vacate and set the judgment aside and shall discharge the prisoner or resentence him or grant him a new trial or correct the sentence as may appear appropriate.

A court may entertain and determine such motion without requiring the production of the prisoner at the hearing. The sentencing court shall not-be-required to entertain a second or successive motion for similar relief on behalf of the same prisoner.

A second or successive motion may be dismissed if the judge finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the movant or his attorney to assert those grounds in a prior motion constituted an abuse of the procedure governed by these rules.

An appeal may be taken to the appropriate appellate court from the order entered on the motion as from a final judgment on application for writ of habeas corpus. All orders denying motions for post-conviction relief shall include a statement that the movant has the right to appeal within thirty days of the rendition of the order. The prisoner may file a motion for rehearing of any order denying a motion under this rule within fifteen days of the date of service of the order. The clerk of. the court shall promptly serve upon the prisoner a copy of any order denying a motion for post-conviction relief or denying a motion for rehearing noting thereon the date of service by an appropriate certificate of service.

An application for writ of habeas corpus in behalf of a prisoner who is authorized to apply for relief by motion pursuant to this rule, shall not be entertained if it appears that the applicant has failed to apply for relief, by motion, to the court which sentenced him, or that such court has denied him relief, unless it also appears that the remedy by motion is inadequate or ineffective to test the legality of his detention.

1984 COMMITTEE NOTE:

The committee felt that provisions should be added to allow the court to consider why a subsequent motion was being filed and whether it was properly filed, similar to subrule 9(b) of Rule 35 of the Federal Rules of Criminal Procedure.

The committee also felt that the court should have the authority to order the state to respond to a 3.850 motion by answer or other pleading as the court may direct.

The committee felt that even though a motion filed under Rule 3.850 does not substantially comply with the requirements of the rule, the motion should still be filed and ruled on by the court. Hence the former provision authorizing the court to refuse to receive such a non-conforming motion has been removed and words allowing the presiding judge to summarily deny a non-complying motion have been satisfied.


source: Caselaw Access Project

author: GLICKSTEIN, Judge. PER CURIAM.

license: Public Domain

text:
    Larry Lee SHANNON, Petitioner, v. Anabel P. MITCHELL, Chairperson, Florida Parole and Probation Commission, R.V. Turner, Glades Correctional Institution Superintendent, et al., Respondents.
    No. 83-2257.
    District Court of Appeal of Florida, Fourth District.
    April 11, 1984.
    On Motion for Certification to be in Direct Conflict Jan. 9, 1985.
    Larry Lee Shannon, pro se petitioner.
    Enoch J. Whitney, General Counsel, John C. Courtney, Asst. Gen. Counsel, Florida Parole and Probation Com’n, Tallahassee, for respondents.
   GLICKSTEIN, Judge.

Petitioner is in prison, as he has been for more than ten years, except for brief sojourns among the free thanks to either escape or parole. Our inquiry now is not into the root causes of his criminal conduct, but only into whether the Florida Parole and Probation Commission’s aggregation rule for calculating a Presumptive Parole Release Date (PPRD) was properly applied in his case.

In Shannon v. Turner, 432 So.2d 204 (Fla. 4th DCA 1983), the court treated a petition of the same petitioner on a similar matter as a petition for writ of mandamus, following Harrisson v. Florida Parole and Probation Commission, 428 So.2d 388 (Fla. 4th DCA 1983). The Harris,son court had appropriately relied on Moore v. Florida Parole and Probation Commission, 289 So.2d 719 (Fla.1974), cert. denied, 417 U.S. 935, 94 S.Ct. 2649, 41 L.Ed.2d 239 (1974), which held:

The Parole Commission is required, as any other body, to comply with constitutional requirements; it cannot deny parole upon illegal grounds or upon improper considerations. It is answerable in mandamus if it does.

Id. at 720. Nevertheless we treat the present petition as one for habeas corpus, for petitioner seeks immediate release. We follow Judge Pearson’s characteristically scholarly opinion in Jenrette v. Wainwright, 410 So.2d 575 (Fla.3d DCA), pet. for rev. denied, 419 So.2d 1201 (Fla.1982), to the effect that habeas corpus is the appropriate means for challenging the validity of a PPRD when the petitioner seeks immediate release.

Here a prisoner represented by an inmate legal assistant challenges the continued deprivation of his liberty by virtue of misconstruction of the rule governing the use of prior sentences in redetermining a PPRD when a parolee is recommitted. From the less than direct response prepared by a commission lawyer, we are at a loss to determine whether the PPRD calculation came about because of an honest misapprehension of the applicability of the rule or from an overblown sense of the agency’s responsibility to hold a social transgressor accountable for his misconduct. Fortunately great strides have been made during our lifetime, dating, one might say, from Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), in safeguarding the legitimate rights of unfortunate outcasts against the temptation to lock them indefinitely out of sight and put the causes of their predicaments out of mind. Miscreants should indeed be held accountable, but no one is granted arbitrary power to extend incarceration beyond the intent of applicable laws and rules; and simultaneously — and increasingly — society must bend its efforts to the elimination of those conditions that breed sociopaths.

It is indeed not the role of the commission indiscriminately to turn out into the streets those who may again prey on the rest of us; but neither is it the commission’s function to stretch the rules in order to extend the quarantine. Here the commission relies on Florida Administrative Code Rule 23-21.11(3)(b) as the basis for its aggregation of unserved time from a former commitment, which it asserts had not yet expired when another commitment was imposed. While this is true, we agree with the holding in Jordan v. Florida Parole and Probation Commission, 423 So.2d 450, 451 (Fla. 1st DCA 1982), that Rule 23-21.11 is not invoked when there is not a new commitment. Shannon had been released on parole long after both commitments of concern here. The commission aggregated them when calculating Shannon’s PPRD after his parole was revoked. There was no new commitment at this point. Because Shannon’s uttering a forgery commitment expired before his parole was revoked, only his breaking and entering commitment belongs in the calculus. If we apply the commission’s own figures, Shannon’s PPRD, based on the latter commitment only, has long passed.

Petition is granted. Petitioner should be released, subject to standard applicable parole provisions. See Taylor v. Wainwright, 418 So.2d 1095 (Fla. 5th DCA 1982).

DOWNEY and DELL, JJ., concur.

ON MOTION FOR CERTIFICATION TO BE IN DIRECT CONFLICT.

PER CURIAM.

In our original opinion we granted the petitioner’s petition for writ of habeas corpus, in which he claimed entitlement to immediate release because his presumptive parole release date (PPRD) had been improperly extended by the Parole and Probation Commission. In response to our decision, the Commission has requested that we certify the question because our holding conflicts with opinions rendered by the First and Fifth District Courts of Appeal that mandamus rather than habeas corpus is the corrective even when entitlement to immediate release is claimed. We agree that our opinions in this case and in Fuller v. Wainwright, 458 So.2d 1131 (Fla. 4th DCA 1984), directly conflict with the First and Fifth District Courts of Appeal decisions of Kirsch v. Greadington, 425 So.2d 153 (Fla. 1st DCA 1983) and Pannier v. Wainwright, 423 So.2d 533 (Fla. 5th DCA 1982). We therefore grant the Commission’s motion to certify that the inter-district conflict demonstrated by this opinion and the above decisions requires immediate consideration by the Florida Supreme Court. To this end, we certify to the Florida Supreme Court the following:

Whether a prisoner who claims that improper calculation of his P.P.R.D. entitles him to immediate release on parole properly proceeds by mandamus or habeas corpus.

DOWNEY, GLICKSTEIN and DELL, JJ., concur.

      . Shannon v. Mitchell, 460 So.2d 910 (Fla. 4th DCA 1984).


author: DANAHY, Acting Chief Judge. PER CURIAM.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., Appellant, v. Terri GANT, a minor, etc., and Jack L. Gant and Donna Gant, individually and as personal representatives of the Estate of Lisa S. Gant, deceased, Appellees.
    No. 83-1142.
    District Court of Appeal of Florida, Second District.
    Sept. 26, 1984.
    Rehearing Denied Dec. 19, 1984.
    Stephen E. Hooper of Fowler, White, Gil-len, Boggs, Villareal & Banker, Fort Myers, for appellant.
    Richard A. Kupfer of Cone, Wagner, Nu-gent, Johnson, Hazouri & Roth, West Palm Beach, for appellees.
   DANAHY, Acting Chief Judge.

The defendant in this suit concerning uninsured motorist coverage appeals from an order granting the plaintiffs’ motion for a partial summary judgment determining the issue of coverage in the plaintiffs’ favor. We affirm in part and reverse in part.

On October 9, 1980, Terri and Lisa Gant, both minors, were hit by an automobile driven by Rolland Slatzer. As a result of the accident, Terri Gant was seriously injured and Lisa Gant was killed. For present purposes it is agreed that the cause of the accident was the negligence of Slat-zer.

At the time of the accident, the childrens’ father carried two automobile insurance policies with defendant/appellant (State Farm). One policy clearly provided uninsured motorist coverage of $50,000/$100,-000 and, pursuant to a settlement agreement, State Farm paid the $100,000 limits under that policy less a small setoff for a portion of the liability limits under a policy covering Slatzer.

This suit concerns the other State Farm policy. The plaintiffs sought a declaratory judgment that the two State Farm policies could be stacked and that the second policy provided $50,000/$100,000 in uninsured motorist coverage, the same limits as the bodily liability coverage, because there had been no valid rejection of that coverage when the policy was first written. Thus, the plaintiffs seek in this action a declaration that there is available an additional $100,000 in uninsured motorist coverage under their second State Farm policy. The trial judge granted the plaintiffs’ motion for partial summary judgment, ruling in their favor on both points as a matter of law. This appeal followed.

The first issue concerns the application of section 627.4132, Florida Statutes (1983). That statute was first enacted by the legislature in 1976 and prohibited stacking of automobile insurance coverage. The statute was amended, effective October 1, 1980, to exclude uninsured motorist coverage from its purview. Accordingly, with the 1980 amendment, the statute no longer prohibits stacking of uninsured motorist coverage.

State Farm takes the position that because the policy involved in this case was renewed prior to October 1, 1980, the amended statute may not be retroactively applied to its preexisting contract so as to permit stacking without unconstitutionally impairing the obligations of the contract. We disagree.

First, we observe that the question is not retroactive application of the statute, but current application to an existing contract. The legislature is free to enact such a law applicable to an existing contract unless the effect of the application is a denial of rights under the federal or Florida constitutions. The Supreme Court of the United States found no constitutional impediment to the application of a forum state s law permitting stacking to insurance policies written and issued in a neighboring state which prohibited stacking, where the policies obviously contemplated that they would not be stacked. Allstate Insurance Co. v. Hague, 449 U.S. 302, 101 S.Ct. 633, 66 L.Ed.2d 521 (1981). Accordingly, we find that section 627.4132, as amended October 1, 1980, may constitutionally be applied to the State Farm policies issued to the plaintiffs. We hold that the trial judge was correct in ruling that the uninsured motorist coverage under the two policies may be stacked in this case.

Resolution of the second issue, however, requires reversal. On the motion by the plaintiffs for partial summary judgment, the trial judge had before him an affidavit by one of the plaintiffs, Jack L. Gant, and an affidavit by the State Farm agent from whom the State Farm policies were obtained. The Gant affidavit flatly states that Mr. Gant was never given the option of selecting uninsured motorist coverage in an amount equal to bodily injury liability coverage on "the policy in question, and further states that “I did not knowingly reject uninsured motorist limits in a lesser amount than my bodily injury liability limits provided by the above described policy.” The affidavit of the State Farm agent just as flatly states that Mr. Gant knowingly rejected uninsured motorist coverage equal to the bodily injury liability limits provided for in the policy. These affidavits demonstrate a genuine issue of material fact on the question of knowing rejection. It was error, therefore, for the trial judge to enter a summary judgment on that issue. Holl v. Talcott, 191 So.2d 40 (Fla.1966). It goes without saying that a trial judge may not, on motion for summary judgment, make evidentiary determinations involving the credibility of witnesses.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.

CAMPBELL and SCHOONOVER, JJ., concur.

ON MOTION FOR REHEARING

PER CURIAM.

Three months after oral argument in this case, the Fifth District Court of Appeal issued its opinion in Metropolitan Property & Liability Insurance Co. v. Gray, 446 So.2d 216 (Fla. 5th DCA 1984). The result in that case is directly contrary to the result which we have reached in the instant case. Now, seven months after the decision in the Gray case, the appellant has seen fit to bring this case to our attention and argue for rehearing based on the conflict.

We recognize and certify that our decision in this case is in conflict with the decision in Metropolitan Property & Liability Insurance Co. v. Gray. Except to that extent, appellant’s motion for rehearing is denied.

DANAHY, A.C.J., and CAMPBELL and SCHOONOVER, JJ., concur.

      . Dewberry v. Auto-Owners Insurance Co., 363 So.2d 1077 (Fla.1978), involved the converse situation to the instant case and, in our view, is not controlling. In Dewberry, the court held that the prior statute prohibiting stacking could not constitutionally apply to a preexisting policy which permitted stacking. The policy holder had paid an increased premium for that coverage. Thus application of the statute would have diminished the value of his contract. That situation is not present in the case before us.


author: DAUKSCH, Judge.

text:
    In re the Marriage of Roswell Gardner CHENEY, Appellant, v. Margaret Joan Scott Blakey CHENEY, Appellee.
    No. 83-1708.
    District Court of Appeal of Florida, Fifth District.
    Nov. 8, 1984.
    Rehearing Denied Dec. 19, 1984.
    Salvatore R. Scarito, Orlando, for appellant.
    John B. Liebman, Carlton, Fields, Ward, Emmanuel, Smith & Cutler, P.A., Tampa, for appellee.
   DAUKSCH, Judge.

This is an appeal from a judgment in a marriage dissolution case. The principal point on appeal involves a claimed special equity in real property.

It was clearly established by the evidence that the husband conveyed by deed his interest in the subject real property in order for the wife to obtain a loan from a bank to pay various debts of the parties and make improvements on the property. The bank would not loan the money to the husband but only to the wife because of the husband’s poor credit rating. Only the wife was obligated on the mortgage note and this obligation was part of the consideration she paid for the husband’s interest in the property.

Husband claims the principles enunciated , in Ball v. Ball, 335 So.2d 5 (Fla.1976) apply here and since he got the property by inheritance he should be deemed the equitable owner of the property even though the legal title is in her name. He says she must prove a gift to her was intended since he in essence provided all the consideration (by inheritance) for the property when it was acquired. Good argument, but it misses the point. This was not a gift situation at all. It was a transfer for consideration. The conveyance was made to facilitate the obtaining of the mortgage loan. There was consideration for the transaction: the wife incurred a debt, the bank obtained an interest in the property, the husband was relieved of some debt and the property was improved.

This is not a Ball special equity situation, it is a business deal.

AFFIRMED.

COBB, C.J., and FRANK D. UP-CHURCH, J., concur.


author: ORFINGER, Judge. COWART, Judge,

text:
    Randall Wayne WALCOTT, Appellant, v. STATE of Florida, Appellee.
    No. 83-1083.
    District Court of Appeal of Florida, Fifth District.
    Nov. 15, 1984.
    Rehearing Denied Dec. 26, 1984.

      James B. Gibson, Public Defender, and Lucinda H. Young, Asst. Public Defender, Daytona Beach, for appellant.
    Jim Smith, Atty. Gen., Tallahassee, and W. Brian Bayly, Asst. Atty. Gen., Daytona Beach, for appellee.
   ORFINGER, Judge.

Defendant was convicted of burglary of a structure and appeals that conviction. In addition to questioning the correctness of the trial court’s ruling on a motion to suppress his confession, defendant also questions the propriety of the trial court’s retention of jurisdiction over the first half of his sentence.

There was substantial competent evidence to sustain the trial court’s finding that defendant’s confession was freely and voluntarily made, after he had been fully advised of his rights, so we will not disturb that finding. Rubasky v. State, 401 So.2d 894 (Fla. 5th DCA 1981).

The court did err, however, in retaining jurisdiction over defendant’s sentence. Section 947.16(3), Florida Statutes (1983) permits the retention of jurisdiction in sentences for certain enumerated offenses, among which is the offense of burglary of a structure or conveyance in which a human being is present (a second degree felony). The charging document did not allege that a human being was present in the structure, and defendant was not convicted of that offense. Instead, defendant was charged with and convicted of burglary of a structure, a third degree felony. Section 810.02(3), Florida Statutes (1983). Consequently, there is no statutory basis for the retention of jurisdiction here, and that portion of the sentence must be set aside.

The State contends, however, that there was no objection in the trial court to the retention of jurisdiction, and that the issue has not been preserved for appeal. The record reveals that there was an objection made when the court announced its intention to reserve jurisdiction. Although not couched in the most artful language, it appears sufficient to advise the trial court of defendant’s objection. We are mindful of the admonition that “... magic words are not needed to make a proper objection.” Williams v. State, 414 So.2d 509, 512 (Fla. 1982).

However, even should the objection be deemed insufficient to fully apprise the trial court of the basis for defendant’s objection, we have previously held, contrary to the State’s position, that the contemporaneous objection rule does not apply to sentencing errors where, as here, it is contended that there was an erroneous retention of jurisdiction. Brumley v. State, 455 So.2d 1096 (Fla. 5th DCA 1984) [9 FLW 1945], relying on Rhoden v. State, 448 So.2d 1013 (Fla.1984). For the reasons expressed in Brumley, we reject the State’s argument on that issue. See also, Neal v. State, 451 So.2d 1058 (Fla. 5th DCA 1984).

So that the State may secure a definitive ruling on the applicability of the contemporaneous objection rule to sentencing errors such as involved here, and as we did in Brumley, we certify to the Supreme Court of Florida, as a question of great public importance, the following:

WHETHER, BY OPERATION OF THE CONTEMPORANEOUS OBJECTION RULE, A DEFENDANT IS PRECLUDED FROM CHALLENGING, ON DIRECT APPEAL, THE TRIAL COURT’S RETENTION OF JURISDICTION OVER ONE-HALF OF HIS SENTENCE WHEN NO OBJECTION TO SUCH RETENTION IS MADE AT THE TIME OF SENTENCING?

Conviction AFFIRMED; Retention of Jurisdiction VACATED.

FRANK D. UPCHURCH, Jr., J., concurs.

COWART, J., concurs specially with opinion.

COWART, Judge,

concurring specially.

This case involves the applicability of the contemporaneous objection rule to sentencing errors.

Effective June 16, 1983 (chapter 83-131), section 947.16(3), Florida Statutes, was amended to reduce the time for which a judge may retain jurisdiction to review a proposed parole release from one-half to one-third of the sentence. When the defendant was sentenced on June 28, 1983, the trial judge erred in retaining jurisdiction over the first one-half of the séntence. See Hayes v. State, 452 So.2d 656 (Fla. 2d DCA 1984).

Section 947.16(3), Florida Statutes, applies only to certain enumerated offenses, including burglary of a dwelling and burglary of a structure or conveyance in which a human being is present. The defendant was charged and convicted of burglary of the Sunshine Junior Food Store. Neither in the original accusatorial document nor otherwise was it alleged that the burglared structure contained a human being. At no time was the defendant given notice of such an allegation nor an opportunity to be heard as to it. No evidence of this essential fact was presented and it was not made an issue concerning which the trial judge was required to make an adjudication. Due process requires these steps when a judicial determination of such a fact can determine the length of time a defendant may be lawfully incarcerated.

Citing Jones v. State, 384 So.2d 956 (Fla.5th DCA 1980), review denied, 392 So.2d 1375 (Fla.1980), and Thomas v. State, 394 So.2d 548 (Fla. 5th DCA 1981), quashed in part 419 So.2d 634 (Fla.1982), the state contends that since the defendant did not raise these sentencing errors in the trial court they were not preserved for appeal.

Until recently this court has rather consistently applied the contemporaneous objection rule to sentencing errors. The following is a case summary of the origin and history of the application of the contemporaneous objection rule (COR) to claimed sentencing errors in this court:

Smith v. State, 378 So.2d 313 (Fla. 5th DCA 1980), approved 394 So.2d 407 (Fla. 1980), applied the contemporaneous objection rule (COR) to a sentencing error (the application of the enhancement statute without sufficient notice and essential findings), citing Engel v. State, 353 So.2d 593 (Fla. 3d DCA 1977). Engel applied the COR to a sentencing error (violation of the single transaction rule), citing Jones v. State, 341 So.2d 846 (Fla. 3d DCA 1977) and Noble v. State, 338 So.2d 904 (Fla. 1st DCA 1976). Jones merely cites Noble. Noble cites no authority and only states that the record did not show that the question of the sentencing error was ever raised in the trial court and, further, Noble had been quashed by the supreme court (Noble v. State, 353 So.2d 819 (Fla.1977)) before Engel issued and long before Smith relied on Engel.
Jones v. State, 384 So.2d 956 (Fla. 5th DCA 1980), rev. denied, 392 So.2d 1375 (Fla.1980), applied the COR to a sentencing error (imposition of an enhanced habitual offender sentence without prerequisite findings required by § 775.084(3), Fla.Stat.), citing Smith and Engel and Clark v. State, 363 So.2d 331 (Fla.1978). Clark does not relate to a sentencing error but to an improper comment on the defendant’s exercise of his right to remain silent.
Singleton v. State, 386 So.2d 1314 (Fla. 5th DCA 1980), applied the COR to a sentencing error (imposition of an enhanced habitual offender sentence without prerequisite findings required by § 775.084, Fla.Stat.), citing Smith, En-gel, and Noble.
Barlow v. State, 388 So.2d 349 (Fla. 5th DCA 1980), applied the COR to a sentencing error (improperly imposed condition of probation), citing Jones and Smith.
Barlow v. State, 390 So.2d 165 (Fla. 5th DCA 1980), cited Smith and -Jones, and held that an objection to an improper condition of probation should first be presented to the trial court.
Dillow v. State, 391 So.2d 752 (Fla. 5th DCA 1980), cited Barlow, 388 So.2d 349 (Fla. 5th DCA 1980), and applied the COR to an issue concerning restitution. Thomas v. State, 394 So.2d 548 (Fla. 5th DCA 1981), applied the COR to a sentencing error (imposition of an enhanced habitual offender sentence without prerequisite findings required by § 775.-084(3), Fla.Stat.), citing Jones and Smith. Hampton v. State, 399 So.2d 441 (Fla. 5th DCA 1981), applied the COR to a sentencing error (imposition of enhanced sentence without prerequisite findings), citing Jones.
Dunman v. State, 400 So.2d 838 (Fla. 5th DCA 1981), applied the COR to sentencing errors (sentencing without a PSI and without prerequisite findings required by § 39.111(6), Fla.Stat.), citing Jones and Smith.
Rubasky v. State, 401 So.2d 894 (Fla. 5th DCA 1981), cited Jones, Smith and Dun-man and applied the COR to a sentencing error (failure to make findings required by § 39.111(6), Fla.Stat.).
Burley v. State, 402 So.2d 73 (Fla. 5th DCA 1981), cited Rubasky and Dunman and applied the COR to a sentencing error (failure to make findings required by § 39.111(6), Fla.Stat.).
Canty v. State, 402 So.2d 1232 (Fla. 5th DCA 1981), cited Jones and Smith and applied the COR to a sentencing error (retention of jurisdiction over parole release without stating reasons on record as required by § 947.16(3)(a), Fla.Stat.). Greene v. State, 403 So.2d 1126 (Fla. 5th DCA 1981), cited Rubasky and Dunman and applied the COR to a sentencing error (failure to make findings required by § 39.111(6), Fla.Stat.).
O’Berry v. State, 406 So.2d 1251 (Fla. 5th DCA 1981), cited Rubasky and Dun-man, and applied the COR to a sentencing error (failure to make findings required by § 39.111(6), Fla.Stat.).
Harvey v. State, 408 So.2d 579 (Fla. 5th DCA 1981), cited Smith, Jones and Dun-man and applied the COR to a sentencing error (failure to make findings required by § 39.111(6), Fla.Stat.).
Bentley v. State, 411 So.2d 1361 (Fla. 5th DCA 1982), cited Smith, Jones, Singleton, and Barlow, and stated that an objection to an improper condition of probation should first be presented to the trial court.
Glenn v. State, 411 So.2d 1367 (Fla. 5th DCA 1982), cited Rubasky and Dunman and applied the COR to sentencing errors (failure to make findings required by § 39.111(6), Fla.Stat., and the retention of jurisdiction without stating reasons as required by § 947.16(3), Fla.Stat.).
Monarca v. State, 412 So.2d 443 (Fla. 5th DCA 1982), cited Dunman, Rubasky, and Greene and applied the COR to a sentencing error (failure to make findings required by § 39.111(6), Fla.Stat.). King v. State, 413 So.2d 458 (Fla. 5th DCA 1982), affirmed a denial of post-conviction relief on the authority of Jones and Smith.
Gaskins v. State, 415 So.2d 132 (Fla. 5th DCA 1982), applied the COR to a sentencing error (retention of jurisdiction over parole release without stating reasons as required by § 947.16(3), Fla. Stat.), citing Barlow, Jones and Smith. Brown v. State, 428 So.2d 369 (Fla. 5th DCA 1983), applied the COR to a sentencing error (the ex post facto application of § 947.16(3), Fla.Stat., authorizing trial court retention of jurisdiction over parole release), citing Williams v. State, 414 So.2d 509 (Fla.1982). Williams involved the' identical sentencing error as involved in Brown. In Williams the supreme court referred to the COR but found that as a matter of fact in that case an adequate objection had been made.

State v. Rhoden, 448 So.2d 1013 (Fla. 1984), involved a sentencing error (failure to make findings required by section 39.111(6), Fla.Stat.), and in that case the Florida Supreme Court disapproved Dunman, Burley and Glenn stating that the purpose for the COR is not present in the sentencing process.

In Weston v. State, 452 So.2d 95 (Fla. 1st DCA 1984), the First DCA followed Rho-den in a case where the sentencing error was failure to make findings required by section 39.111(6), Florida Statutes, but in Cofield v. State, 453 So.2d 409 (Fla. 1st DCA 1984), a case involving a sentencing error (the ex post facto application of § 947.16(3), Fla.Stat., authorizing retention of jurisdiction over parole release, as in Brown and Williams), a majority of the appellate panel declined to follow Rhoden, and narrowly construed Rhoden to apply only to a sentencing error resulting from the failure to make findings required by section 39.111(6), Florida Statutes. However, as Judge Richard W. Ervin, III, dissenting in Cofield, observes, the rationale given by the supreme court for not applying the contemporaneous objection rule to the sentencing error in Rhoden applies equally to all sentencing errors. In Neal v. State, 451 So.2d 1058 (Fla. 5th DCA 1984), this court applied Rhoden to a sentencing error resulting from an improper application of section 947.16(3), Florida Statutes, authorizing retention of jurisdiction over parole releases.

The holding in Rhoden, that the rationale of the contemporaneous objection rule does not apply to sentencing errors, does not, however, answer other serious questions relating to the review and correction of various sentencing errors. Section 924.-06(d), Florida Statutes, and Florida Rule of Appellate Procedure 9.140(b)(D), permits a defendant to appeal an illegal sentence. Rule 3.800(a) provides that a court “may” at any time correct an illegal sentence imposed by it. Rule 3.850 authorizes post-conviction relief and correction of sentences imposed in violation of state or federal constitutions or laws or by a court without jurisdiction or when the sentence “was in excess of the maximum authorized by law” or “was not authorized by law” or when the sentence is otherwise subject (or “open”) to collateral attack. When does a sentencing error render the sentence “illegal” within the meaning of section 924.-06(d), Florida Statutes, and Rule 9.140(b)(D), which grant a defendant the right to a' direct appeal from an illegal sentence? What is the difference between an “illegal sentence” correctable on appeal (or under Rule 3.800(a)) and a sentencing error correctable under Rule 3.850? If a sentencing error renders a sentence “illegal” and hence subject to review on direct appeal, is there any waiver or bar if the error is not timely presented for review by direct appeal or may the defendant still present an appealable sentencing error to the trial court at any time by motion under Rule 3.800(a) or Rule 3.850 and then appeal an adverse ruling? What about the long, long line of cases holding that a matter is not a proper ground for ancillary post-conviction relief under Rule 3.850 if it was either reviewed or reviewable by direct appeal? Is the correction of an illegal sentence under Rule 3.800(a) purely discretionary with the sentencing court? Does Rule 3.800(a) constitute an independent authorization for the correction of an illegal sentence or does it merely authorize correction of a sentence under Rule 3.850 “at any time”? If correction of a sentencing error requires determination of a collateral question of fact not required for a conviction, may the error be first presented on direct appeal or must it be presented under Rule 3.850 (see, e.g., Meintzer v. State, 399 So.2d 133 (Fla. 5th DCA 1981))?

Even before Rhoden some cases had declined to apply the contemporaneous objection rule to sentencing errors found to constitute “fundamental sentencing errors”. Though Rhoden eliminates the necessity of determining a sentencing error to be “fundamental” to avoid an implied waiver resulting from the contemporaneous objection rule, is the fundamental/non-fundamental dichotomy still relevant to the ascertainment of the line of demarcation, if any, between “non-fundamental” sentencing errors, which render the sentence “illegal” and must be timely reviewed by direct appeal, and “fundamental” sentencing errors which may be presented by direct appeal but which are also subject to collateral attack under Rule 3.850.?

Sentencing is not a part of the adversary aspect of the criminal justice system that is involved in the determination of guilt. In imposing a sentence the court does not stand neutral between contending parties— the judge represents the interests of organized society in dealing with an offender. No one who believes in the role of law in our form of government believes that a citizen should be deprived of his liberty and confined as punishment except under a sentence imposed in accordance with all lawful requirements.

It should be recognized that, because persons accused of crime are held to be entitled to competent, effective defense counsel and because defense counsel who unwittingly fails to assert and protect valuable sustantive and procedural legal rights of a defendant are not competent and effective, the concept of implied waiver of such rights by failure of counsel to timely object to, and appeal, the violation of such legal rights is essentially inconsistent with the trend to grant defendants relief from the results of failings of incompetent counsel to timely object and appeal legal errors in criminal cases.

In view of the fact that citizens are dependent upon competent counsel and judges to insure that legal sentencing requirements are observed, the clear trend is to eliminate or disregard all legal technical obstacles to the correction of sentencing errors. Those who legislate substantive rights and who promulgate procedural rules should consider if the time has not arrived to take action to improve the present rules and statutes. The first step might be to eliminate these vexatious questions, perhaps by eliminating the right of direct appeal of sentencing errors with the injustice that necessarily attends application of the concept of implied waiver to the failure of counsel to timely, knowingly and intelligently present appealable sentencing errors for direct appellate review. Perhaps it would be better to have one simple procedure, permitting and requiring, any legal error in sentencing that can result in any disadvantage to a defendant, to be presented once, specifically, explicitly, but at any time to the sentencing court for correction with the right to appeal from an adverse ruling.

In this case, there being conflict in the evidence the trial judge was entitled to credit testimony that supported the lawfulness of defendant’s confession and reject the defendant’s contrary testimony. Therefore the admissibility of the confession was proper and the defendant’s conviction is properly affirmed. However, because no waiver resulted from the failure to make a contemporaneous objection in the trial court, Rhoden, and the record in this case is sufficient to determine that section 947.16(3), Florida Statutes, was improperly applied, the special provision of the sentence for retention of jurisdiction under that section is properly stricken and the sentence, as modified, is properly affirmed.

      . As to erroneous rulings admitting evidence the contemporaneous objection rule is embodied in section 90.104(l)(a), Florida Statutes, which limits reversals to errors admitting evidence when a timely objection or a motion to strike appear on the record stating the specific ground of objection if it is not apparent from the context. As to jury instructions, the contemporaneous objection rule is contained in Florida Rule of Criminal Procedure 3.390(d) which provides that no party may assign as error on appeal the giving or the failure to give a jury instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which he objects, and the grounds of his objection.

      . Sentencing errors include (1) failure to extend allocution or to permit the defendant to present matters in bar or in mitigation or extenuation (Rule 3.720) (see, e.g., Hargis v. State, 451 So.2d 551 (Fla. 5th DCA 1984)), (2) sentences in excess of the statutory maximum authorized for the particular offense (see, e.g., §§ 775.082, 958.05, Fla.Stat.); (3) improper departures from guideline sentences (Rule 3.701b.6. and d.ll), (4) general sentences (see Dorfman v. State, 351 So.2d 954 (Fla.1977)), (5) imposition of a withheld sentence, (6) failure to impose mandatory minimum sentences (see §§ 775.082(1), 775.087(2), and 893.135, Fla.Stat.), (7) failure to consider a presentence report when required (Rule 3.710), (8) failure to give statutory jail time credit under section 921.161(1), Fla.Stat., (9) the erroneous imposition of conditions of probation (see. e.g., Fresneda v. State, 347 So.2d 1021 (Fla. 1977), as to restitution, and Villery v. Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1981), as to jail confinement), and (10) imposition of sentences under special statutory authority without making essential prerequisite findings in the prescribed manner, such as, the findings required by (a) section 39.-111(6), Fla.Stat., to sentence a juvenile as an adult, (b) section 775.084(3), Fla.Stat., to impose an enhanced habitual offender sentence, (c) section 947.16(3), Fla.Stat., to retain jurisdiction over parole release, (d) sections 775.0845 and 775.087(1), Fla.Stat., to enhance punishment for wearing a mask or using a weapon while committing an offense, and (e) section 775.087(2), Fla.Stat., to impose the three year mandatory minimum firearm sentence.

        .See, e.g., Downs v. State, 453 So.2d 1102 (Fla.1984); Ziegler v. State, 452 So.2d 537 (Fla.1984); Foster v. State, 400 So.2d 1 (Fla.1981); Duhart v. State, 369 So.2d 639 (Fla. 3d DCA 1979); Johnson v. State, 364 So.2d 118 (Fla. 1st DCA 1978); Tyner v. State, 363 So.2d 1165 (Fla. 1st DCA 1978); Pitts v. State, 355 So.2d 505 (Fla. 1st DCA 1978); Burau v. State, 353 So.2d 1183 (Fla. 3d DCA 1978); Ashley v. State, 350 So.2d 839 (Fla. 1st DCA 1977); Austin v. State, 160 So.2d 730 (Fla. 2d DCA 1964).

      . See Green v. State, 450 So.2d 1275 (Fla. 5th DCA 1984).

      . See, e.g., Reynolds v. State, 429 So.2d 1331 (Fla. 5th DCA 1983); Shieder v. State, 430 So.2d 537 (Fla. 5th DCA 1983); Hough v. State, 448 So.2d 628 (Fla. 5th DCA 1984).


author: RYDER, Chief Judge.

text:
    Vernon A. REID, Appellant, v. STATE of Florida, Appellee.
    No. 84-695.
    District Court of Appeal of Florida, Second District.
    Nov. 16, 1984.
    Rehearing Denied Dec. 27, 1984.

      Jerry Hill, Public Defender, Bartow and Allyn Giambalvo, Asst. Public Defender, Clearwater, for appellant.
    Jim Smith, Atty. Gen., Tallahassee and Gary O. Welch, Asst. Atty. Gen., Tampa, for appellee.
   RYDER, Chief Judge.

The appellant was tried and found guilty of burglary/assault and attempted sexual battery. For the burglary/assault conviction, the trial court sentenced him to fifty years imprisonment and retained jurisdiction for twenty-five years. For the attempted sexual battery conviction, the court sentenced him to thirty years imprisonment and retained jurisdiction for ten years. These sentences were reversed and remanded for “resentencing” in Reid v. State, 440 So.2d 651 (Fla. 2d DCA 1983). This opinion was issued on November 18, 1983.

At the March 7, 1984 resentencing hearing, the appellant attempted to elect to be sentenced under the sentencing guidelines, Florida Rule of Criminal Procedure 3.701, which became effective on October 1, 1983. During the hearing, appellant argued that under the guidelines the recommended sentence range for his convictions was three and one-half to four and one-half years imprisonment. The court ruled that the guidelines did not apply to this case on the ground that, according to Reid, supra, the proceeding was a “resentencing” rather than a “sentencing.” The court reasoned that because the guidelines did not apply when the appellant was originally sentenced, they did not apply when he was resentenced. Thereafter, the court sentenced the appellant to fifty years on the burglary/assault conviction and fifteen years on the attempted sexual battery conviction. The court retained jurisdiction over one-third of each sentence.

Section 921.001(4)(a), Florida Statutes (1983), provides that: “[t]he guidelines shall be applied ... to all felonies, except capital felonies and life felonies, committed prior to October 1, 1983, for which sentencing occurs after such date when the defendant affirmatively selects to be sentenced .... ” These guidelines were adopted by the legislature and approved by the Florida Supreme Court. There is no exception in the guidelines for the omission of those cases where a sentence has been reversed and remanded for resentencing. Cf Boyett v. State, 452 So.2d 958, 959 (Fla. 2d DCA 1984).

In this case, the appellant’s sentence was reversed by this court after October 1, 1983. Our sister court has ruled that even where a delay until after October 1, 1983 has been caused by a defendant’s own misdeed, the defendant may still elect guidelines sentencing. Knight v. State, 455 So.2d 457 (Fla. 1st DCA 1984) (defendant failed to appear at -initial sentencing hearing); Query v. State, 455 So.2d 554 (Fla. 1st DCA 1984) (defendant was a fugitive from justice for over one year). The delay in the imposition of appellant’s legal sentence was due to his exercising his right to appeal. He is entitled to elect guidelines sentencing.

In reviewing the record on appeal, we note that the March 7, 1984 judgment on remand after the first appeal reflects that the court sentenced the appellant to the maximum sentence for a second degree felony (fifteen years), but listed the crime as a first degree on the judgment. Upon remand, the trial court should correct this error so that the proper number of points are assessed when calculating the guidelines sentence.

Reversed and remanded to allow the appellant to be sentenced under the guidelines.

CAMPBELL and LEHAN, JJ., concur.


author: PER CURIAM.

text:
    Dorothy RECHICHI, Appellant, Cross Appellee, v. Dominic J. RECHICHI, Appellee, Cross Appellant.
    No. 84-169.
    District Court of Appeal of Florida, Fourth District.
    Nov. 28, 1984.
    Rehearing Denied Jan. 15, 1985.
    Deborah Marks of Atkinson, Golden, Jen-ne, Diner & Stone, P.A., Hollywood, for appellant/cross appellee.
    Ronald P. Gossett of Hodges, Gossett, McDonald, Gossett & Crawford, P.A., Hollywood, for appellee/cross appellant.
   PER CURIAM.

This is an appeal and cross appeal from a final judgment in a dissolution of marriage proceeding. The wife alleges error (a) in the distribution of marital assets; (b) in the failure of the trial court to incorporate certain stipulations into the final judgment; and (c) in the award of an insufficient amount of alimony. The husband alleges error in the award of permanent alimony.

The parties have failed to demonstrate an abuse of discretion by the trial court. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Kuvin v. Kuvin, 442 So.2d 203 (Fla.1983); Conner v. Conner, 439 So.2d 887 (Fla.1983); Marcoux v. Marcoux, 445 So.2d 711 (Fla. 4th DCA 1984); Marshall v. Marshall, 445 So.2d 706 (Fla. 4th DCA 1984); Hilderbran v. Hilderbran, 357 So.2d 788 (Fla. 1st DCA 1978); Lang v. Lang, 252 So.2d 809 (Fla. 4th DCA 1971); Siegel v. Zimmerman, 319 So.2d 187 (Fla. 3rd DCA 1975).

There is, however, a matter which we view to be housekeeping in nature. The final judgment provided for the wife to receive rehabilitative alimony of $1,000 per month for two years and thereafter to receive $400 per month as permanent alimony. We believe that the intent of the trial court is clear; namely, that the wife should receive $400 per month permanent alimony from date of judgment and simultaneously receive $600 per month rehabilitative alimony for two years. Accordingly, we affirm in all respects but remand with direction to amend the language of the final judgment to express clearly the intent as recited herein.

GLICKSTEIN and HURLEY, JJ., and GOLDMAN, MURRAY, Associate Judge, concur.


author: BOARDMAN, Judge.

text:
    STATE of Florida, Petitioner, v. Rodney D. HANSCOM, Respondent.
    No. 84-1757.
    District Court of Appeal of Florida, Second District.
    Nov. 28, 1984.
    Rehearing Denied Jan. 2, 1985.
    E.J. Salcines, State Atty., and Jack Espi-nosa, Jr., Asst. State Atty., Tampa, for petitioner.
    James A. Neel, North Fort Myers, for respondent.
   BOARDMAN, Judge.

By petition for writ of certiorari, the state seeks review of the trial court’s order releasing respondent, Rodney D. Hanscom, an adjudicated drug trafficker, from prison under a $15,000 bond pending the outcome of the state’s appeal of respondent’s sentence. We grant the writ of certiorari and quash the challenged order.

Respondent pled guilty to the charged offense of trafficking in excess of 400 grams of cocaine, a first-degree felony punishable under section 893.135(l)(b)3., Florida Statutes (1983), by a fifteen-year mandatory minimum term of imprisonment and payment of a $250,000 fine. Respondent, however, entered his plea under a written agreement which required the state to move for reduction of his sentence to a five-year mandatory minimum term in exchange for his substantial assistance in identifying, apprehending, and convicting fellow drug traffickers.

Although respondent apparently furnished some information to the state, the state contended at sentencing that the quality and extent of respondent’s assistance fell far short of that required under the plea agreement. According to the state, Mr. Hanscom had failed to divulge all the information that the state knew he possessed, and he also had expressed a reluctance to testify at trial. Consequently, the state refused to move for reduction of respondent’s mandatory fifteen-year sentence. After receiving evidence and hearing argument of counsel, the trial court found that the state had failed to demonstrate respondent's noncompliance with the plea agreement; the court, therefore, adjudicated respondent guilty of trafficking in cocaine and imposed the five-year mandatory minimum sentence specified in the parties’ agreement.

When the state expressed its intention to appeal the trial court’s sentencing decision, the court indicated that it would be inclined to grant a defense motion to release respondent on bail pending the outcome of the state’s appeal. Although the court recognized that a literal reading of section 903.133, Florida Statutes (1983), would preclude the granting of bail on appeal to any individual adjudged guilty of certain specified first-degree felonies, including drug trafficking, it believed that the state’s appeal from a sentence imposed pursuant to a written plea agreement constituted an exceptional circumstance not contemplated by the statute. When the court subsequently entered its order releasing respondent on bail pending appeal, this timely petition for writ of certiorari ensued.

The Florida legislature enacted section 903.133 in response to its specific finding that the existence and perpetuation of drug trafficking in this state endangers the health, safety, welfare, and morals of our citizenry. See Ch. 80-72, Laws of Florida. As particularly relevant to this case, the legislature also found that “a person who has been adjudged guilty of a first degree felony for a violation of s. 893.13 or s. 893.135, Florida Statutes, has committed a crime of inherent gravity and as a result is likely to escape justice and disappear upon adjudication of guilt_” Id. Presumably in light of the grave danger posed by drug trafficking and the propensity of drug traffickers to abscond upon adjudication of guilt and later resurface to perpetuate their nefarious trade, the legislature has determined that “the mere forfeiture of bond on appeal does not serve the ends of justice_” Id. Consequently, our legislature has expressly stated, “[I]t is the intent of the Legislature that no person adjudged guilty of a first degree felony for a violation of s. 893.13 or s. 893.135, Florida Statutes, be admitted to bail pending appellate review....” Id.

Section 903.133, Florida Statutes (1983), articulates this legislative intent in language which leaves little room for debate. Section 903.133 provides, “Notwithstanding the provisions of s. 903.132, no person adjudged guilty of a felony of the first degree for a violation of s. 782.04(2) or (3), s. 787.01, s. 794.011(4), s. 806.01, s. 893.13, or s. 893.135 shall be admitted to bail pending review either by posttrial motion or appeal.” As respondent concedes, the statute has been upheld as constitutional. See State v. Palmer, 450 So.2d 931 (Fla. 3d DCA 1984); Echeverría v. State, 411 So.2d 357 (Fla. 3d DCA 1982); Hart v. State, 405 So.2d 1048 (Fla. 4th DCA 1981), petition for review denied, 415 So.2d 1359 (Fla. 1982).

It appears clear to us that the legislature intended to prohibit appellate bond for all individuals adjudged guilty of a first degree felony under section 893.135, without regard for whether the state or the defendant pursued the appeal. Indeed, section 903.133 seeks to prevent convicted drug traffickers from “escap[ing] justice and disappearing] upon adjudication of guilt,” Ch. 80-72, Laws of Florida, a danger which is equally present upon the individual’s release from incarceration regardless of which side undertakes the appeal. Nor does the fact that respondent was adjudicated under a written plea agreement change our conclusion. Notwithstanding this circumstance or the reduced sentence imposed, respondent still falls within the ambit of the statute because he has been adjudged guilty of a first degree felony under section 893.135. That respondent might be permitted to withdraw his plea upon disposition of the state’s appeal creates no exception under the statute, just as an adjudicated drug trafficker’s potential success in his direct appeal has no bearing on the application of section 903.133.

In conclusion, we hold that the trial court’s ruling admitting respondent to bail pending appellate review clearly departs from the essential requirements of law. Accordingly, we grant certiorari and quash the trial court’s order.

RYDER, C.J., and DANAHY, J., concur.

      . Section 893.135(3), Florida Statutes (1983), provides:
      The state attorney may move the sentencing court to reduce or suspend the sentence of any person who is convicted of a violation of this section and who provides substantial assistance in the identification, arrest, or conviction of any of his accomplices, accessories, coconspirators, or principals. The arresting agency shall be given an opportunity to be heard in aggravation or mitigation in reference to any such motion. Upon good cause shown, the motion may be filed and heard in camera. The judge hearing the motion may reduce or suspend the sentence if he finds that the defendant rendered such substantial assistance.

      . The state challenged the correctness of the trial court’s sentencing decision through a direct appeal, State v. Hanscom, Case No. 84-245, which is still pending before this court. We, of course, express no opinion as to the correctness of that ruling.

      . The time for filing a motion for rehearing is reduced to three days from the date of this opinion.