       Third District Court of Appeal
                               State of Florida

                           Opinion filed April 18, 2018.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D17-1759
                         Lower Tribunal No. 96-38920
                             ________________


                                 Alvis Masis,
                                    Appellant,

                                          vs.

                            The State of Florida,
                                       Appellee.



      An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the
Circuit Court for Miami-Dade County, Ellen Sue Venzer, Judge.

      Alvis Masis, in proper person.

     Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant Attorney
General, for appellee.


Before ROTHENBERG, C.J., and EMAS and LUCK, JJ.

      ROTHENBERG, C.J.
      The defendant, Alvis Masis, appeals from the denial of his postconviction

motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal

Procedure 3.800(a). For the reasons that follow, we affirm.

      On December 5, 1996, a warrant was issued for the arrest of the defendant

for for the murder of Erica Cano (“the victim”), a homicide committed that day.

On March 4, 2009, a new arrest warrant was issued, along with a felony

information, charging the defendant with the second degree murder of the victim.

On July 21, 2009, the arrest warrant was served on the defendant when he returned

to this country. The evidence established that the victim was found lying in the

bathtub in a motel room with a wire hanger wrapped around her neck. The

medical examiner determined that the cause of death was strangulation and the

manner of death was a homicide. Upon his arrest, the defendant gave a taped

statement wherein he admitted to becoming angry with the victim, or as he

described it, he was “full of anger, of madness” when he realized the victim

intended to leave him. The defendant explained that he and the victim argued and,

at some point, he grabbed the victim by the neck, dragged her into the bathroom,

reached for something (which turned out to be a wire hanger), grabbed the victim

by the neck again, wrapped the wire hanger around the victim’s neck, and threw

the victim into the bathtub. When she did not move anymore, he left the motel.




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The defendant told the detective that he realized that he should have simply ended

the relationship, and now he had to pay for his guilt.

      On July 7, 2011, the defendant pled guilty to second degree murder, and

pursuant to his negotiated plea, he was sentenced to twenty years in state prison

with credit for time served. Since his plea, the defendant has attacked below, and

continues to attack here, his sentence on the ground that the sentence imposed is

illegal because he was sentenced under the 1995 sentencing guidelines scoresheet

which was invalidated by the Florida Supreme Court in Heggs v. State, 759 So. 2d

620 (Fla. 2000).

      On October 23, 2012, the defendant filed a motion for postconviction relief

under rule 3.850 claiming ineffective assistance of counsel, alleging, in part, that

his trial counsel should have objected to the guidelines scoresheet used to calculate

the permissible sentencing range in his case. In his motion, the defendant cited to

Heggs and claimed that, had the correct scoresheet been used, he would not have

been sentenced to more than 12.5 years in prison. Following the State’s response,

the trial court denied the motion, and the defendant did not appeal the denial of his

2012 rule 3.850 motion.

      On March 7, 2014, the defendant raised the same challenge, but this time he

claimed his sentence was illegal under rule 3.800(a). However, the defendant

withdrew his motion after the State advised the defendant that if the trial court set



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aside the plea, the State was prepared to try the defendant for second degree

murder, and if convicted, he could receive a life sentence.

        On September 25, 2015, the defendant raised his scoresheet claim again in a

subsequent rule 3.800(a) motion, claiming that his sentence was an illegal sentence

because the guidelines scoresheet invalidated by Heggs was used to compute the

permissible sentencing range relied on by the State when it negotiated the plea

with the defendant and by the trial court when it accepted the negotiated plea. The

trial court denied the motion, and this Court affirmed that ruling on appeal. Torres

v. State, 199 So. 3d 274 (Fla. 3d DCA 2016).1

        Undaunted, the defendant returned to the trial court in 2017 and filed

another rule 3.800(a) motion attacking the legality of his sentence on the same

grounds and additionally claiming that the amount of gain time he has received is

incorrect and that he should be resentenced under a 1994 sentencing guidelines

scoresheet.    The trial court concluded that the defendant’s sentence does not

violate Heggs, is not illegal, and is successive, and therefore denied the motion.

                                     ANALYSIS

        An illegal sentence for purposes of a rule 3.800(a) motion is one that

involves

        a kind of punishment that no judge under the entire body of sentencing
        statutes could possibly inflict under any set of factual circumstances.

1   Alvis Masis is also known as Alvin Masis Torres.

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      On the other hand, if it is possible under all the sentencing statutes—
      given a specific set of facts—to impose a particular sentence, then the
      sentence will not be illegal within rule 3.800(a) even though the judge
      erred in imposing it.

Carter v. State, 786 So. 2d 1173, 1178 (Fla. 2001) (quoting Blakely v. State, 746

So. 2d 1182, 1186-87 (Fla. 4th DCA 1999) (emphasis added in Carter).

      The homicide the defendant pled to in 2011 was committed in 1996, and

thus a 1995 sentencing guidelines scoresheet was used to calculate the appropriate

sentencing range absent the imposition of a departure sentence. However, in 2000,

the Florida Supreme Court held in Heggs that the 1995 amendment to the

sentencing guidelines was unconstitutional because the Legislature’s enactment of

Chapter 95-184, Laws of Florida, violated the single subject provision of Article

III, section 6, of the Florida Constitution, and thus, persons affected by the

amendment were entitled to be resentenced under the 1994 sentencing guidelines.

The Heggs decision is, however, tempered by two requirements: (1) the Heggs

claim must be raised within two years after the defendant’s conviction and

sentence became final, see Miller v. State, 829 So. 2d 321, 322 (Fla. 5th DCA

2002); and (2) the length of the sentence must have been adversely affected by

Heggs, see Gonzalez v. Crosby, 879 So. 2d 1274, 1274-75 (Fla. 3d DCA 2004).

And, of course, the rules regarding sentencing scoresheet errors also apply. The

defendant’s Heggs claim fails to meet any of the legal requirements of either a




                                        5
general sentencing scoresheet challenge or a Heggs sentencing scoresheet

challenge.

I. Scoresheet errors generally

      The Florida Supreme Court has clarified that when addressing scoresheet

errors, the “could-have-been-imposed,” “would-have-been-imposed” standards

apply. See Brooks v. State, 969 So. 2d 238, 241-44 (Fla. 2007). Under the “could-

have-been-imposed” standard, if the trial court could have imposed the same

sentence using the correct scoresheet, any error from reliance upon the incorrect

scoresheet is harmless. Id. at 243. However, if, as the defendant claims in this

case, the argument is over whether the trial court would have imposed the sentence

if it had the benefit of the corrected scoresheet, the defendant must file his

postconviction motion within the two-year limitation imposed by rule 3.850(b). Id.

at 242-43. That is because

      the class of errors that constitute an “illegal” sentence that can be
      raised for the first time in a post-conviction motion decades after a
      sentence becomes final is a narrower class of errors than those termed
      “fundamental” errors that can be raised on direct appeal even though
      unpreserved.

State v. Anderson, 905 So. 2d 111, 118 (Fla. 2005) (citing to Maddox v. State, 760

So. 2d 89, 100 n.8 (Fla. 2000)).

      A. Application of the “could-have-been-imposed” standard




                                        6
      The defendant’s claim fails under the “could-have-been-imposed” standard

because even if his conviction was recalculated under a 1994 sentencing guidelines

scoresheet, the sentence that was imposed in 2011 would still fall within the

permissible sentencing range under the 1994 sentencing guidelines. Under the

1995 sentencing guidelines, the trial court was required to impose a sentence

between 20.5 and 34.16 years in state prison unless there existed a valid reason for

the imposition of a departure (upward or downward) sentence. If the defendant’s

conviction was rescored under the 1994 sentencing guidelines, the trial court could

impose a sentence anywhere from 17.16 to 21.67 years in state prison without

being required to submit valid reasons to impose a departure sentence. Because

the defendant was sentenced to twenty years in prison, his sentence falls within the

permissible sentencing range under both sentencing schemes. Thus, any error in

the use of the 1995 sentencing scoresheet constitutes harmless error. Brooks, 969

So. 2d at 243.

      B. Application of the “would-have-been-imposed” standard

      “Would-have-been-imposed” challenges to scoresheet errors fall outside of

the rule 3.800 illegal sentence rubric. Such challenges must be filed under rule

3.850. Anderson, 905 So. 2d 112; see also Brooks, 969 So. 2d at 238 (“In State v.

Anderson, we held that the would-have-been-imposed standard applies to

postconviction motions filed under Florida Rule of Criminal Procedure 3.850.”).



                                         7
“Such motions must be filed within two years after the judgment and sentence are

final.” Brooks, 969 So. 2d at 238-39.

      The defendant entered his guilty plea and was sentenced on July 7, 2011.

Because he did not file a direct appeal, his conviction and sentence became final

thirty days thereafter. See Saavedra v. State, 59 So. 3d 191, 192 (Fla. 3d DCA

2011) (“The two-year time limitation for filing motions for post-conviction relief

pursuant to Florida Rule of Criminal Procedure 3.850 does not begin to run until

appellate proceedings have concluded and the court issues a mandate or thirty days

after the judgment and sentence become final if no direct appeal is filed.”).

Because the defendant’s conviction and sentence became final in August 2011, the

defendant’s claim in his 2017 motion for postconviction relief—that had the 1994

scoresheet been utilized, the State may have offered him a sentence less than the

twenty-year sentence the State offered and he pled to—is clearly time-barred.

      C. Application of Heggs

      The defendant’s Heggs claim raised in his 2017 motion for postconviction

relief was also properly denied by the trial court because the defendant has failed

to show that he was adversely affected by application of the 1995 sentencing

guidelines. State v. Lemon, 825 So. 2d 927, 929 (Fla. 2002). As stated in Heggs,

759 So. 2d at 627:

      [O]nly those persons adversely affected by the amendments made by
      chapter 95–184 may rely on our decision here to obtain relief. Stated


                                        8
      another way, in the sentencing guidelines context, we determine that if
      a person’s sentence imposed under the 1995 guidelines could have
      been imposed under the 1994 guidelines (without a departure), then
      that person shall not be entitled to relief under our decision here.

      As already addressed, the defendant’s twenty-year sentence could have been

imposed without a departure under the 1994 sentencing guidelines.



                                 CONCLUSION

      The trial court properly denied the defendant’s 2017 motion for

postconviction relief based on the use of the 1995 sentencing guidelines scoresheet

that was invalidated by the Florida Supreme Court in Heggs. The defendant’s

sentence was not illegal as his sentence reflects a guidelines sentence under both

the 1995 and the 1994 sentencing guidelines. Because the sentence could have

been imposed had a 1994 scoresheet been used, the defendant has not been

adversely affected by Heggs and the use of the 1995 scoresheet is harmless error.

      We decline to address the defendant’s arguments regarding the calculation

of his gain time as the defendant has failed to exhaust his administrative remedies

with the Department of Corrections and if unsuccessful there, then his remedies in

the circuit court. Therefore, that claim is not properly before us. See Stovall v.

Cooper, 860 So. 2d 5, 7 (Fla. 2d DCA 2003) (“When alleging a deprivation of gain

time, prisoners who have exhausted all administrative channels must seek their

remedy in circuit court by way of a petition for an extraordinary writ.         If a


                                         9
prisoner’s sentence would have expired had the Department properly awarded gain

time, habeas corpus is the proper remedy. Otherwise a petition for a writ of

mandamus is the proper method for review of the Department’s denial of gain

time.”) (citations omitted).

      Affirmed.




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