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Cox v. State

Florida Court of Appeals, Third District

May 31, 2017

Emmett Timothy Cox, Appellant,
v.
The State of Florida, Appellee.

         Not final until disposition of timely filed motion for rehearing.

         An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County Lower Tribunal No. 97-15719, Marisa Tinkler-Mendez, Judge.

          Emmett Timothy Cox, in proper person.

          Pamela Jo Bondi, Attorney General, and Eric J. Eves, Assistant Attorney General, for appellee.

          Before ROTHENBERG, EMAS and LOGUE, JJ.

          EMAS, J.

         Emmett Timothy Cox appeals from the trial court's order denying his motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm, because Cox failed to meet the burden imposed on him when seeking to correct or vacate an illegal sentence pursuant to rule 3.800(a).

         On October 9, 1998, Cox entered a negotiated plea to the charges of armed robbery with a firearm (three counts) and aggravated battery (one count), and was sentenced as a habitual felony offender to life imprisonment.[1] As part of the negotiated plea, Cox expressly stipulated in writing that "he qualifies as a habitual felony offender pursuant to the statutory requirements set forth in 775.084, " and further stipulated that he had previously been convicted of qualifying predicate felonies in case numbers 89-47912, 89-47604, 89-47603, 89-47602 (each a conviction for armed robbery) and in case number 89-6004B (a conviction for burglary). Cox further stipulated in writing that "at least one of the above prior convictions was within five years of the cases for which the defendant is presently charged, "[2] and that none of these prior convictions had been set aside, nor a pardon granted.

         In 2016, Cox filed a pro se motion to correct illegal sentence, alleging that the sentence (and in particular, the habitual offender designation) was illegal because his prior convictions were not sequential as required by section 775.084(5).[3] However, in his negotiated plea Cox expressly stipulated that he had been convicted of these prior predicate felonies and that he qualified as a habitual felony offender under section 775.084. In doing so, Cox knowingly and voluntarily waived the procedural requirements of section 775.084 and, with it, the State's obligation to present evidence establishing that Cox qualified as a habitual felony offender.[4] See Irving v. State, 627 So.2d 92 (Fla. 3d DCA 1993); White v. State, 60 So.3d 1101 (Fla. 5th DCA 2011).

         Moreover, and as the State correctly argues, Cox failed to satisfy the burden imposed on him when seeking to correct an illegal sentence under rule 3.800(a). Unlike a motion for postconviction relief pursuant to rule 3.850, [5] a motion to correct illegal sentence pursuant to rule 3.800(a) places the burden on the defendant, who must "affirmatively allege[] that the court records demonstrate on their face an entitlement to relief. . . ." Fla. R. Crim. P. 3.800(a). The burden is not upon the State to demonstrate that the records conclusively show that the defendant is entitled to no relief. In meeting his burden on a motion to correct illegal sentence, the defendant may not rely on facts beyond the face of the record. Johnson v. State, 60 So.3d 1045 (Fla. 2011). In the instant case, Cox has failed to affirmatively identify court records which, on their face, demonstrate the existence of an illegal sentence or an entitlement to relief under rule 3.800(a). Indeed, on its face, the record below (which includes the written plea agreement and the sentencing transcript) undermines Cox's claim that he did not qualify as a habitual felony offender. Affirmed.

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Notes:

[1] This was part of a negotiated global plea in five separate cases; in the other four cases, Cox was charged with, inter alia, armed robbery (two counts); attempted armed robbery (one count); burglary with an assault or battery (one count); and fleeing a law enforcement officer. As part of this negotiated global plea, the sentences imposed in all five cases were ordered to be served concurrently.

In addition, on April 17, 1998 (six months prior to the global plea) Cox had been sentenced to life in prison as a habitual felony offender in case number 97-12328 (three counts of armed robbery). As part of the parties' negotiations, the sentences imposed pursuant to the global plea were also ordered to be ...


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