FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit
Court for Pasco County; Susan G. Barthle, Judge.
Ray Parish, pro se.
Jo Bondi, Attorney General, Tallahassee, and Jeffrey H.
Siegal, Assistant Attorney General, Tampa, for Appellee.
Ray Parish challenges the summary denial of his motion to
correct sentence filed June 17, 2017. Parish was charged and
convicted of first-degree burglary and involuntary sexual
battery in 1979. He was sentenced in February 1980 to life in
prison on the burglary conviction and to a consecutive
fifteen years in prison on the involuntary sexual battery
conviction. Parish's judgment and sentences were affirmed
on appeal. Parish v. State, 404 So.2d 875 (Fla. 2d
DCA 1981) (table decision).
motion, filed pursuant to Florida Rule of Criminal Procedure
3.800(a), Parish argued that his fifteen-year consecutive
sentence for involuntary sexual battery is illegal because
under the law at the time he committed the offenses he could
not have been sentenced for both first-degree burglary and
involuntary sexual battery where the sexual battery
conviction was the predicate offense for the burglary
conviction. See Speed v. State, 410 So.2d 980, 981
(Fla. 2d DCA 1982) (relying on State v. Hegstrom,
401 So.2d 1343 (Fla. 1981)). The postconviction court
interpreted Parish's claim as one challenging the
involuntary sexual battery conviction, determined that such a
claim could only be raised in a motion pursuant to rule
3.850, and denied the claim as untimely filed under that
3.800(a) is limited to claims that a sentence itself is
illegal, without regard to the underlying conviction."
Coughlin v. State, 932 So.2d 1224, 1226 (Fla. 2d DCA
2006) (en banc). Thus, where, unlike the facts of
Coughlin, correcting an alleged illegal sentence
would not require the vacation of the corresponding
conviction, and the error is otherwise identifiable on the
face of the record, Williams v. State, 957 So.2d
600, 602 (Fla. 2007), the claim is cognizable in a rule
3.800(a) motion. See also Jackson v. State, 650
So.2d 1026, 1027 (Fla. 1st DCA 1995) (reversing dismissal of
motion to correct sentence where postconviction court did not
address claim that Hegstrom applied, thus making
Jackson's sentence for armed robbery illegal).
time Parish was charged, the law was that "a court
[could] not sentence on lesser included offenses arising out
of the same criminal transaction or episode as the higher
offense" where the lesser offense was alleged in the
charging language of the higher offense. Ennis v.
State, 364 So.2d 497, 500 (Fla. 2d DCA 1978) (citing
§ 775.021(4), Fla. Stat. (1977)) (discussing category
four lesser included offenses under Brown v. State,
206 So.2d 377 (Fla. 1968)). In 1979, to convict a defendant
of first-degree burglary, the State was required to
"plead and prove not only the essential elements of
burglary as defined in section 810.02(1), [Florida Statutes
(1979), ] but also that, in the course of committing the
burglary, the defendant either made an assault upon a
person" or was armed with a dangerous weapon or
explosives. Speed, 410 So.2d at 981. Therefore,
unless alleged as an assault, a sexual battery would not
allow for reclassification of a burglary charge as was done
in Parish's case.
the pendency of Parish's appeal, the Florida Supreme
Court decided Hegstrom, in which the court
"determine[d] what punishment our legislature authorized
for a single criminal transaction involving two or more
separate, statutory offenses." 401 So.2d at 1346. The
Hegstrom court determined that where proof of the
greater offense "requires, by definition, proof of the
predicate [offense], the latter is necessarily an offense
included within the former" such that a defendant may be
convicted of both offenses but not sentenced on the predicate
offense. Id. (citing § 775.021(4), Fla. Stat.
(1979)). Hegstrom was subsequently overruled by
State v. Enmund, 476 So.2d 165, 168 (Fla. 1985).
However, the sentencing law in effect at the time of the
crimes must be applied. Lamore v. State, 86 So.3d
546, 548 (Fla. 2d DCA 2012); cf. Wheeler v. State,
344 So.2d 244, 245 (Fla. 1977) ("The decisional law in
effect at the time an appeal is decided governs the issues
raised on appeal, even where there has been a change of law
since the time of trial."). Thus, at the time this court
decided Parish's appeal, there was no bar to his
conviction for involuntary sexual battery; however, based on
the law in effect when he committed the crimes, his sentence
for involuntary sexual battery may have been barred. And if
barred, the claim of illegal sentence is independent from
Parish's conviction such that it should be considered by
the postconviction court. See Speed, 410 So.2d at
981 (recognizing the holding of Hegstrom and
concluding that Speed could not "be sentenced both for
first-degree felony burglary and sexual battery, but [could]
be convicted and adjudicated guilty of both"). But
see White v. State, 412 So.2d 28 (Fla. 2d DCA 1982)
(affirming sentences for first-degree felony burglary and
sexual battery without reference to Speed).
the postconviction court did not address Parish's claim
that his sentence is illegal without regard to the underlying
conviction, we reverse and remand.
VILLANTI, BLACK, and ...