U.S. v. Wysocki

Full title: UNITED STATES OF AMERICA, v. DAVID HENRY WYSOCKI, II

Court: United States District Court, M.D. Florida, Tampa Division

Date published: Jun 6, 2011

CASE NO. 8:10-CR-89-T-17EAJ (M.D. Fla. Jun. 6, 2011)

Opinion

CASE NO. 8:10-CR-89-T-17EAJ.

June 6, 2011

ORDER

ELIZABETH KOVACHEVICH, District Judge

This cause is before the Court on:

Dkt. 121 Motion to Dismiss Supervised Release Violation and Vacate Order of Supervised Release Dkt. 123 Response Dkt. 124 Reply Defendant Wysocki moves the Court to vacate part of its sentencing Order that placed Defendant Wysocki on a term of Supervised Release, because Supervised Release is not a lawful term of his sentence. Defendant Wysocki also requests that the Court dismiss the pending Supervised Release violation. The basis of Defendant's Motion to Dismiss is 18 U.S.C. Sec. 3583.

The Court heard oral argument on June 1, 2011. The Court denied Defendant's Motion to Dismiss. Defendant Wysocki objected to the Court's denial of the Motion to Dismiss, which the Court overruled.

The Court conducted a sentencing hearing on October 18, 2010 (Dkt. 89), and a Judgment was entered thereafter (Dkt. 94). The Court granted Defendant Motion to Amend/Correct Sentence under Rule 35(a) (Dkt. 96), and entered an Amended Judgment (Dkt. 99). In considering Defendant's Motion to Dismiss, the Court incorporates by reference all pleadings, all filings in the record, all evidence and argument made at sentencing, and all evidence and argument at the revocation proceeding.

Defendant Wysocki contends that a term of supervised release was imposed invalidly. Defendant Wysocki argued that, when Defendant's sentence was imposed, the parties and the Court erroneously presumed that supervised release would be available after a prison sentence. Supervision was identified as a contested issue for the first time when Defendant Wysocki filed Defendant's Motion to Dismiss.

A sentence is presumed valid until vacated under Sec. 2255.U.S. v. Almand, 992 F.2d 316, 317-318 (11^th Cir. 1993). The Court notes that Defendant Wysocki filed an appeal after his sentence was imposed, but subsequently dismissed the appeal. Defendant's Motion to Dismiss is not a timely request to modify Defendant's sentence under Rule 35, and is not a request to modify sentence under Sec. 3582. Defendant's Motion to Dismiss is not brought under Sec. 2255.

After consideration, the Court denies Defendant's Motion to Dismiss for lack of jurisdiction. Defendant's sentence became final, and until Defendant's sentence is modified on appeal, or pursuant to a Sec. 2255 petition, Defendant's sentence remains a final judgment. Accordingly, it is ORDERED that Defendant's Motion to Dismiss is denied. DONE AND ORDERED in Chambers, in Tampa, Florida.