Modest v. State

Full title: Willie MODEST, Appellant, v. The STATE of Florida, Appellee

Court: District Court of Appeal of Florida, Third District

Date published: Feb 9, 2005

892 So. 2d 566 (Fla. Dist. Ct. App. 2005)

Opinion

No. 3D04-2946.

February 9, 2005.

Appeal from the Circuit Court, Miami-Dade County, Victoria S. Sigler, J.

Willie Modest, in proper person.

Charles J. Crist, Jr., Attorney General, for appellee.

Before COPE, WELLS and SHEPHERD, JJ.

COPE, J.

Willie Modest appeals an order denying his motion to correct illegal sentence. We affirm.

Defendant-appellant Modest was sentenced as a habitual violent felony offender ("HVO") in 1992. In this postconviction motion the defendant asserts that his sentence as an HVO is impermissible under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Those decisions are inapplicable to the defendant's case. We have held that the decision in Blakely is not retroactive. Burgal v. State, 888 So.2d 702 (Fla. 3d DCA 2004); see McBride v. State, 884 So.2d 476, 478 (Fla. 4th DCA 2004).

The United States Supreme Court's recent decision in Schriro v. Summerlin, ___ U.S. ___, 124 S.Ct. 2519, 159 L.Ed.2d 442 (2004), held that the decision in Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) is not retroactive. A majority of the Florida Supreme Court has also ruled that Ring is not retroactive. Monlyn v. State, No. SC02-1729, ___ So.2d ___, 2004 WL 2797191 (Fla. Dec. 2, 2004). As Ring is an application of the rule in Apprendi, see Schriro, 124 S.Ct. at 2521-22, it follows that Apprendi is likewise not retroactive. See also Hughes v. State, 826 So.2d 1070 (Fla. 1st DCA 2002), review granted, 837 So.2d 410 (Fla. 2003); Figarola v. State, 841 So.2d 576 (Fla. 4th DCA 2003), discretionary review stayed, No. SC03-586 (Fla. Sept. 4, 2003) (stayed pending disposition of Hughes v. State).

Finally, even if Apprendi were retroactive (which it is not), Apprendi does not invalidate adjudications under Florida's habitual violent felony offender statute. See Jackson v. State, 802 So.2d 387 (Fla. 3d DCA 2001); Saldo v. State, 789 So.2d 1150 (Fla. 3d DCA 2001); Robbinson v. State, 784 So.2d 1246 (Fla. 3d DCA 2001).

Affirmed.