Full Opinion

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT STATE OF FLORIDA, ) ) Petitioner, ) ) v. ) Case No. 2D20-2580 ) TERRY LEWIS CRECY, ) ) Respondent. ) ) Opinion filed April 7, 2021. Petition for Writ of Certiorari to the Circuit Court for Hillsborough County; Barbara Twine Thomas, Judge. Ashley Moody, Attorney General, Tallahassee, and Kiersten E. Jensen, Assistant Attorney General, Tampa, for Petitioner. Julianne M. Holt, Public Defender, and Deborah A. Goins, Assistant Public Defender, Tampa, for Respondent. LaROSE, Judge. The State seeks a writ of certiorari, or in the alternative, a writ of prohibition. It wants us to quash the postconviction court's order granting Terry Lewis Crecy's motion to correct illegal sentence, entered in a juvenile resentencing proceeding. See Fla. R. Crim. P. 3.800(a). We have jurisdiction. See Fla. R. App. P. 9.030(b)(2)(A); (b)(3). We dismiss the certiorari petition and deny the prohibition petition. Background The State indicted Mr. Crecy in 2004 for first-degree murder stemming from an attempted robbery. Mr. Crecy was sixteen at the time of the offenses. Pursuant to a negotiated disposition, Mr. Crecy pleaded guilty to second- degree murder with a firearm (count 1) and attempted armed robbery (count 2). In 2007, the trial court sentenced him to a mandatory minimum twenty-five years' imprisonment followed by ten years' probation on count 1 and a concurrent twenty-five- year mandatory minimum term on count 2. See §§ 782.04(2), Fla. Stat. (2003) (prescribing "imprisonment for a term of years not exceeding life" for second-degree murder); 775.087(2)(a)(1)(a), (c), (3), Fla. Stat. (2003) (mandating the imposition of a twenty-five year mandatory minimum term for a defendant convicted of murder or attempted robbery who, during commission of the offenses "discharged a 'firearm' . . . and, as the result of the discharge, death or great bodily harm was inflicted upon any person"). In 2018, Mr. Crecy filed a rule 3.800(a) motion to correct illegal sentence, relying on Miller v. Alabama, 567 U.S. 460 (2012), Graham v. Florida, 560 U.S. 48 (2010), Atwell v. State, 197 So. 3d 1040, 1048-50 (Fla. 2016), and Horsley v. State, 160 So. 3d 393 (Fla. 2015). The State conceded that Mr. Crecy's sentences were unconstitutional under then-existing law. In September 2018, the postconviction court granted Mr. Crecy's motion.1 1The order did not vacate the previously imposed sentences. -2- Some seven months later, in April 2019, the State filed its "Response to Defendant's Motion to Correct Illegal Sentence and Objection to Resentencing, or in the Alternative, Motion to Stay Proceedings." The Florida Supreme Court had released several opinions undermining Mr. Crecy's claims for relief. See Franklin v. State, 258 So. 3d 1239, 1241 (Fla. 2018) ("As we held in Michel[ v. State, 257 So. 3d 3, 8 (Fla. 2018)], involving a juvenile homicide offender sentenced to life with the possibility of parole after 25 years, Florida's statutory parole process fulfills Graham's requirement that juveniles be given a 'meaningful opportunity' to be considered for release during their natural life based upon 'normal parole factors,' [Virginia v. LeBlanc, 137 S. Ct. 1726, 1729 (2017)], as it includes initial and subsequent parole reviews based upon individualized considerations before the Florida Parole Commission that are subject to judicial review." (citing Michel, 257 So. 3d at 6)). The postconviction court treated the State's response as a motion for rehearing. It dismissed the motion for lack of jurisdiction. The State did not seek further review. And so, in March 2020, the postconviction court commenced Mr. Crecy's resentencing hearing. Due to the COVID- 19 pandemic, Mr. Crecy's resentencing has yet to be completed. In early May 2020, the State filed a "Motion for Rehearing," arguing that additional new case law further undermined Mr. Crecy's claim that his sentences were illegal and that he was entitled to resentencing. See Pedroza v. State, 291 So. 3d 541, 548-49 (Fla. 2020) (holding that defendant's forty-year sentence for second-degree murder imposed upon a juvenile offender was not unconstitutional under the Eighth Amendment as interpreted by Miller and Graham, and that Ms. Pedroza was not entitled to resentencing). In August 2020, the postconviction court denied rehearing. -3- Thereafter, in September 2020, the State filed a certiorari petition to "review . . . the [postconviction] court's determination that it has jurisdiction to modify Crecy's legal sentence and resentence Crecy" or, alternatively, to "issue a Writ of Prohibition preventing the trial court from conducting a resentencing hearing . . . when that resentencing is based on laws receded from by the Florida Supreme Court[] . . . and will result in an illegal sentence." Analysis At the outset, we stress that we do not reach, much less resolve, the State's argument that Mr. Crecy's current sentences are legal and that any modification would render them illegal. See Carter v. State, 786 So. 2d 1173, 1181 (Fla. 2001) ("[A] sentence is 'illegal' if it 'imposes a kind of punishment that no judge under the entire body of sentencing statutes could possibly inflict under any set of factual circumstances.' " (quoting Blakley v. State, 746 So. 2d 1182, 1187 (Fla. 4th DCA 1999))); e.g., State v. Moran, 45 Fla. L. Weekly D646, D647 (Fla. 2d DCA Mar. 20, 2020) (holding that the postconviction court imposed an illegal sentence when it granted the juvenile offender's rule 3.800(a) motion and resentenced him to twenty-four years' imprisonment followed by a twenty-year probationary term instead of the mandatory minimum term required by section 782.04, Florida Statutes (2017)), review denied, No. SC20-503, 2020 WL 6058575 (Fla. Oct. 14, 2020). Rather, we examine the controlling question of whether the State is entitled to the relief it seeks. See Fla. Carry, Inc. v. Univ. of N. Fla., 133 So. 3d 966, 981 (Fla. 1st DCA 2013) (en banc) (Wetherell, J., specially concurring) ("[P]rinciples of judicial restraint counsel against addressing issues . . . which are not necessary to resolve the case before the court."). We conclude that it is not. -4- I. Petition for Certiorari (a) State's Petition is Untimely In our district, the postconviction court's September 2018 order granting Mr. Crecy's rule 3.800(a) motion is a nonfinal nonappealable order. See Croft v. State, 295 So. 3d 307, 309 (Fla. 2d DCA 2020) ("We have held that a rule 3.800(a) order finding that a movant is entitled to be resentenced, without imposing a new sentence, is a nonfinal nonappealable order." (citing State v. Rudolf, 821 So. 2d 385, 386 (Fla. 2d DCA 2002))); see also Fla. R. App. P. 9.140(c)(1)(J) (permitting the State to appeal orders "granting relief under Florida Rules of Criminal Procedure 3.801, 3.850, 3.851, or 3.853"). "Notably absent [from the ambit of rule 9.140(c)(1)(J)] is the right to appeal from a rule 3.800(a) order." Morgan v. State, 293 So. 3d 1081, 1084 (Fla. 2d DCA 2020), review granted, No. SC20-641, 2020 WL 3494396 (Fla. June 29, 2020); see also Williams v. State, 46 Fla. L. Weekly D91, D92 (Fla. 2d DCA Jan. 6, 2021) ("We acknowledge there is a split in the decisions of the district courts of appeal as to whether an order granting a rule 3.800(a) motion, prior to resentencing occurring, is a final, appealable order and whether the postconviction court retains jurisdiction to reconsider its ruling granting the motion prior to resentencing."). In Morgan, 293 So. 3d at 1085, we reasoned that because an order granting a rule 3.800(a) motion is a nonfinal nonappealable order, "the postconviction court retained jurisdiction over the case." Consequently, a postconviction court "may reconsider [its] interlocutory, nonfinal orders at any time [it] ha[s] jurisdiction and before a final judgment or order has been rendered." Id. ("Nothing in this rule [concerning rehearing motions] precludes the trial court from exercising its inherent authority to -5- reconsider a ruling while the court has jurisdiction of the case." (quoting Fla. R. Crim. P. 3.192)).2 Morgan's rationale relied on the fact that the postconviction court granted the State's motion for reconsideration of the court's earlier order granting Mr. Morgan's rule 3.800(a) motion. In other words, the Morgan postconviction court "exercis[ed] its inherent authority to reconsider a ruling while the court ha[d] jurisdiction of the case." Fla. R. Crim. P. 3.192. However, in our case, the postconviction court entered a May 2019 order denying the State's April 2019 rehearing motion. Obviously, the postconviction court declined to exercise its inherent authority to reconsider its prior ruling. See Reconsider, Merriam-Webster, https://www.merriam- webster.com/dictionary/reconsider (last visited Mar. 1, 2021) (defining "reconsider" as "to consider again especially with a view to changing or reversing"). More apt than the nebulous contours of "inherent authority" are the specific rehearing provisions in rule 3.800. Cf. Palm Beach Cnty. Canvassing Bd. v. Harris, 772 So. 2d 1273, 1287 (Fla. 2000) ("[I]t is well settled that where two statutory provisions are in conflict, the specific statute controls the general statute."). The relevant rehearing provision states that "[a] party may file a motion for rehearing of any signed, written order entered under subdivision[] (a) . . . of this rule within 15 days of the date of service of the order." Fla. R. Crim. P. 3.800(b)(1)(B). Further, "[a] timely filed 2Rule 3.192 contains an explicit disclaimer that "[t]his rule shall not apply to postconviction proceedings pursuant to rule 3.800(a)." However, in Morgan, 293 So. 3d at 1085 n.2, this court concluded that the rule's further provision that "[n]othing in this rule precludes the trial court from exercising its inherent authority to reconsider a ruling while the court has jurisdiction of the case," nonetheless authorized the State to file an otherwise untimely "motion for reconsideration" of the trial court's prior rule 3.800(a) order granting relief. Be that as it may, nothing in rule 3.800 authorizes a party to file a successive and untimely rehearing motion. -6- motion for rehearing shall toll rendition of the order subject to appellate review and the order shall be deemed rendered upon the filing of a signed, written order denying the motion for rehearing." Id. Rule 3.800's plain language envisions a single rehearing motion. However, the State purports to invoke our jurisdiction upon the postconviction court's August 2020 order denying its successive rehearing motion. This poses two problems. See generally Fla. R. App. P. 9.020(h)(1)(B) (providing that an authorized and timely rehearing motion tolls rendition of an order subject to appellate review) (emphasis added). First, the State's successive May 2020 rehearing motion was not authorized under rule 3.800. Cf. Cochrane v. State, 997 So. 2d 1221, 1222 (Fla. 2d DCA 2008) ("Under Florida Rule of Appellate Procedure 9.020(h), the rendition of an order may be stayed if an 'authorized' and timely motion for rehearing has been filed. Here, however, a motion for rehearing was not authorized for an order entered on this type of motion. Accordingly, this appeal is untimely and must be dismissed." (citation omitted)); Archie v. State, 176 So. 3d 364, 368 (Fla. 1st DCA 2015) ("Because the motion for rehearing was unauthorized, it did not toll the time for filing a notice of appeal. Mr. Archie's notice of appeal was untimely to seek review of the trial court's denial of his motions to withdraw plea." (citation omitted)). This renders the State's September 2020 certiorari petition untimely. See Fla. R. App. P. 9.100(c)(1) (requiring that a petition for certiorari "be filed within 30 days of rendition of the order to be reviewed"). Second, because the successive rehearing motion was itself untimely in relation to the postconviction court's September 2018 order, it did not toll rendition of -7- that order. See Watkins v. State, 217 So. 3d 1135, 1138 (Fla. 3d DCA 2017) ("Since Watkins filed his motion for rehearing on October 25, 2016, we find that the motion for rehearing was not timely filed and thus did not toll rendition of the September 28, 2016, order denying Watkins's motion for illegal sentence."). Because the State's successive May 2020 rehearing motion was both unauthorized and untimely, the State's certiorari petition fails to invoke the necessary writ jurisdiction. Cf. Prudential-Bache Secs., Inc. v. Bandes, 510 So. 2d 315, 316 (Fla. 2d DCA 1987) ("We have concluded that the June 20 motion for rehearing was Prudential-Bache's bootstrapped attempt to overcome its failure to challenge the June 9 order through a motion for rehearing served within the prescribed period."). On that basis, alone, we must dismiss the petition. (b) State's Petition Fails to Demonstrate "Irreparable Harm" A petition for a writ of certiorari must pass a three-pronged test before an appellate court may grant relief from an erroneous interlocutory order. Stephens v. Geoghegan, 702 So. 2d 517, 521 (Fla. 2d DCA 1997); Parkway Bank v. Fort Myers Armature Works, Inc., 658 So. 2d 646, 648 (Fla. 2d DCA 1995). "A petitioner must establish (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the trial (3) that cannot be corrected on postjudgment appeal." Parkway, 658 So. 2d at 648. This court must first examine the second and third prongs, which are sometimes referred to as "irreparable harm," to determine whether we have certiorari jurisdiction to hear the petition at all. See Nader v. Fla. Dep't of Highway Safety & Motor Vehicles, 87 So. 3d 712, 721 (Fla. 2012); State Farm Fla. Ins. Co. v. Buitrago, 100 So. 3d 85, 88 (Fla. 2d DCA 2012). If the jurisdictional prongs are met, then this court must determine whether the trial court's nonfinal order departs from the essential requirements of the law. Buitrago, 100 So. 3d at 88. Sch. Bd. of Hillsborough Cnty. v. Woodford, 270 So. 3d 481, 483 (Fla. 2d DCA 2019). We hasten to note that "[v]ery few categories of non-final orders qualify for the use of -8- this extraordinary writ." Citizens Prop. Ins. Corp. v. San Perdido Ass'n, 104 So. 3d 344, 351-52 (Fla. 2012). The second and third prongs are often referred to as "irreparable harm," and they are jurisdictional. Deutsche Bank Nat'l Tr. Co. v. Prevratil, 120 So. 3d 573, 575 (Fla. 2d DCA 2013). Accordingly, we cannot grant the writ unless the two elements of "irreparable harm" have been established, even if the trial court's order was clearly wrong. See Laycock v. TMS Logistics, Inc., 209 So. 3d 627, 628-29 (Fla. 1st DCA 2017) (explaining that before an appellate court considers the merits of a certiorari petition, it must first determine the threshold jurisdictional question of whether the petitioner has shown irreparable harm and that an appellate court "cannot grant the writ without such a showing-no matter how wrong the trial court might have been"). Absent such a showing, we must dismiss the petition for writ of certiorari. See Plantz v. John, 170 So. 3d 822, 824 (Fla. 2d DCA 2015) ("If the petitioner fails to satisfy the jurisdictional elements, this court dismisses the petition rather than denying it." (citing Parkway Bank v. Fort Myers Armature Works, Inc., 658 So. 2d 646, 649 (Fla. 2d DCA 1995))); Hurley v. State, 112 So. 3d 114, 116 (Fla. 1st DCA 2013) ("Where the jurisdictional requirement of showing irreparable harm is not satisfied, dismissal is appropriate."). The State cannot establish that any subsequent sentence imposed by the postconviction court cannot be corrected on plenary appeal. Indeed, the State is authorized to appeal an illegal sentence. See § 924.07(1)(e), Fla. Stat. (2020) (permitting the State to appeal "[t]he sentence, on the ground that it is illegal"); Fla. R. App. P. 9.140(c)(1)(M) (authorizing the State to appeal an order "imposing an unlawful or illegal sentence"). And, seemingly, a sentence that is shorter than the requisite -9- mandatory minimum term is an illegal sentence. See Moran, 45 Fla. L. Weekly D647; see also § 775.087(2)(a)(1)(a), (c), (3); cf. State v. Swett, 772 So. 2d 48, 51 (Fla. 5th DCA 2000) (discussing the State's remedies when "a lesser sentence than that contemplated by the plea agreement will be imposed"). Thus, we dismiss the State's certiorari petition because it fails to demonstrate irreparable harm. II. Petition for Prohibition The State requests that, in the alternative, we issue a writ of prohibition. It tells us that "[a] writ of prohibition is the appropriate remedy when a trial court acts in excess of jurisdiction or without jurisdiction." The State argues that the postconviction court's August 2020 order denying rehearing evinces its "intention to ignore the law as interpreted by the Florida Supreme Court, its desire to impose an illegal sentence, and reveals its intent to apply the provisions of chapter 2014-220 . . . retroactively thereby rewriting this criminal statute to the lower court’s own satisfaction" and thereby "invad[ing] the province of the legislature." "Prohibition may only be granted when it is shown that a lower court is without jurisdiction or attempting to act in excess of jurisdiction." State v. Jackson, 306 So. 3d 936, 945 (Fla. 2020) (quoting English v. McCrary, 348 So. 2d 293, 296-97 (Fla. 1977)). "Prohibition lies to prevent an inferior tribunal from acting in excess of jurisdiction but not to prevent an erroneous exercise of jurisdiction." Haridopolos v. Citizens for Strong Schs., Inc., 81 So. 3d 465, 468 (Fla. 1st DCA 2011) ("Prohibition lies to redress an inferior tribunal's usurpation of jurisdiction, but it does not lie to prevent mere error in the exercise of the inferior tribunal's jurisdiction." (citing English, 348 So. - 10 - 2d at 298)). "The circuit court is obviously not 'without jurisdiction' to conduct a resentencing." Jackson, 306 So. 3d at 945 (quoting McCrary, 348 So. 2d at 296). The State maintains that the postconviction court misapprehended and incorrectly applied the law. Even if so, prohibition is not the proper remedy. See Lawrence v. Orange Cnty., 404 So. 2d 421, 422 (Fla. 5th DCA 1981) ("In the present case, petitioners contend that the trial court's refusal to dismiss the action for failure to prosecute is error. This issue does not involve a lower tribunal acting without or in excess of jurisdiction but rather concerns an incorrect application of the law. Prohibition is therefore not a proper remedy."); e.g., Fla. Water Servs. Corp. v. Robinson, 856 So. 2d 1035, 1037 (Fla. 5th DCA 2003) ("Prohibition therefore may generally be granted only when it is shown the lower tribunal is without jurisdiction or is attempting to act in excess of its jurisdiction. It will not lie to prevent the mere erroneous exercise of jurisdiction by an inferior tribunal." (first citing T.D.B. v. Kirk, 468 So. 2d 234 (Fla. 5th DCA 1984); then citing Lawrence, 404 So. 2d at 421; and then citing Sch. Bd. of Marion Cnty. v. Angel, 404 So. 2d 359 (Fla. 5th DCA 1981))). We deny the State's prohibition petition. Conclusion We dismiss the State's certiorari petition because it is both untimely and fails to demonstrate irreparable harm. We deny the State's petition for writ of prohibition because the postconviction court is not acting without, or in excess of, its jurisdiction. Petition for Writ of Certiorari is dismissed; Petition for Writ of Prohibition is denied. KELLY and VILLANTI, JJ., Concur. - 11 -