1. Rule 3.800(a).
Generally, a court may at any time correct (1) an illegal sentence (a sentence that is longer than that allowed by law), or (2) a sentencing scoresheet error. To succeed on a rule 3.800(a) motion, however, a defendant must be able to show that the court records demonstrate on their face that the defendant is entitled to relief. A rule 3.800(a) motion should be initiated by filing a motion in the court that issued the judgment and sentence from which the defendant seeks relief. It is important to remember that a defendant cannot seek relief under rule 3.800(a) while his/her direct appeal is pending.A defendant may file a motion for rehearing in the postconviction court within 15 days of the date of the service of the order disposing of the rule 3.800(a) motion. An order denying a rule 3.800(a) motion may be appealed within 30 days of rendition of the final order or the order denying a timely motion for rehearing.
2. Rule 3.800(b).
A defendant may file a rule 3.800(b) motion to ask the sentencing court to correct any sentencing error, including an illegal sentence, during the time allowed for the filing of a notice of appeal of the sentence, or after filing a notice of appeal but before the defendant's first brief is served. A defendant may not proceed under rule 3.800(b) if a death sentence has been imposed against him/her and his/her direct appeal is pending in the Florida Supreme Court. If the defendant has not been sentenced to death and his/her appeal is not in the Florida Supreme Court, then the defendant may file a motion under rule 3.800(b). The defendant’s motion must specifically describe the error in his/her sentence and provide a proposed correction to his/her sentence.The State may file a response to that motion within 15 days, and that response must either admit or deny the alleged sentencing error. The State may also file a motion to correct a sentence under rule 3.800(b), but only if the correction of the sentencing error would benefit the defendant or correct a typographical error. A defendant may file a motion for rehearing of the denial of a rule 3.800(b) motion within 15 days of the order disposing of the motion or within 15 days of the expiration of the 60-day time period for filing an order if no order disposing of the motion is filed.
a. Filing a Rule 3.800(b) Motion Before the Direct Appeal.
A defendant may file a motion to correct, reduce, or modify his/her sentence during the time allowed for the filing of a notice of appeal. This means that the motion is filed within 30 days of rendition of the judgment and sentence. See Fla. R. Crim. P. 3.800(b)(1). If the defendant files the rule 3.800(b) motion before the time to file a notice of appeal expires, the filing of the rule 3.800(b) motion will stop (or toll) the running of the clock on the appeal deadline, and the defendant will not have to file a notice of appeal until after the sentencing court rules on the motion to correct, reduce, or modify a sentence. See Fla. R. Crim. P. 3.800(b)(1)(A).Unless the sentencing court decides that the motion can be decided as a matter of law without a hearing, it must hold a calendar call no later than 20 days from the filing of the motion, with notice to all parties. The purpose of the calendar call is for the sentencing court to either rule on the motion or determine whether it needs to hold an evidentiary hearing. See Fla. R. Crim. P. 3.800(b)(1)(B). If the sentencing court decides that it needs to hold an evidentiary hearing to determine whether the defendant’s sentence should be corrected, reduced, or modified, it must hold that hearing no more than 20 days after the calendar call. See Fla. R. Crim. P. 3.800(b)(1)(B). The sentencing court must file an order ruling on the motion within 60 days after it was filed. See Fla. R. Crim. P. 3.800(b)(1)(B). If the court does not enter an order on the motion within 60 days, the motion is treated as if it were denied. See Fla. R. Crim. P. 3.800(b)(1)(B).
b. Filing a 3.800(b) Motion During Direct Appeal.
A defendant may also file a motion to correct, modify, or reduce his/her sentence under rule 3.800(b) in the sentencing court while the direct appeal is pending. See Fla. R. Crim. P. 3.800(b)(2). A defendant wanting to file a motion under rule 3.800(b)(2) must serve the motion before the first brief is served. In this situation, a defendant must also file a notice of pending motion to correct sentencing error in the appellate court. See Fla. R. Crim. P. 3.800(b)(2). If a defendant files a notice of pending motion to correct sentencing error, the time for filing the first brief will automatically be extended until 10 days after the sentencing court clerk transmits the supplemental record described in Florida Rule of Appellate Procedure 9.140(f)(6). See Fla. R. Crim. P. 3.800(b)(2).The motion must be served on the sentencing court and on all trial and appellate counsel of record. Unless the motion expressly states that trial counsel will not represent the defendant in the sentencing court, trial counsel is supposed to represent a defendant on the motion under Florida Rule of Appellate Procedure 9.140(b)(5). See Fla. R. Crim. P. 3.800(b)(2)(A).
The same procedures regarding the calendar call, hearing, and ruling on a rule 3.800(b)(1) motion filed before a direct appeal apply to the consideration of a rule 3.800(b)(2) motion filed during a direct appeal. See Fla. R. Crim. P. 3.800(b)(2)(B).
Under rule 9.140(f)(6), the clerk of the lower tribunal must supplement the appellate record related to the direct appeal with the 3.800(b) motion, the order granting or denying it, any amended sentence, and, if requested, a transcript of the hearing on the 3.800(b) motion. See Fla. R. Crim. P. 3.800(b)(2)(C).
