         FIRST DISTRICT COURT OF APPEAL
                STATE OF FLORIDA
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                         No. 1D17-2521
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BOBBY BIGHAM,

    Appellant,

    v.

STATE OF FLORIDA,

    Appellee.
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On appeal from the Circuit Court for Duval County.
Linda F. McCallum, Judge.

                       February 23, 2018


WINOKUR, J.

    The appellant, Bobby Bigham, appeals from an order
denying his motion brought under Florida Rule of Criminal
Procedure 3.800. * For the reasons discussed below, we affirm.



    *   Bigham’s motion was entitled “Motion to Correct
Sentencing Error” and cited rule 3.800(b). However, motions
under rule 3.800(b) must be made prior to appeal or pending
appeal, whereas Bigham’s motion was filed almost three years
after his appeal was concluded. The court below did not address
this apparent error. It appears that the court below considered
Bigham’s motion to have been brought under Florida Rule of
Criminal Procedure 3.800(a), which allows a court, “at any time,”
     In Bigham’s motion, he argued that he was improperly
charged with trafficking in hydrocodone (14 grams or more, but
less than 28 grams) pursuant to section 893.135(1)(c)1.b., Florida
Statutes. He alleged that this subsection pertains to
hydromorphone and not hydrocodone, and the error resulted in
the imposition of a fifteen-year mandatory minimum sentence
rather than the three-year mandatory minimum sentence
required by law.

     In 2012, when Bigham committed his offense, trafficking in
hydrocodone, as well as trafficking in hydromorphone (among
other controlled substances), was prohibited by section
893.135(1)(c)1. If the quantity involved was 14 grams or more,
but less than 28 grams, the offense was punishable by a 15-year
mandatory minimum sentence. § 893.135(1)(c)1.b., Fla. Stat.
(2012).

     In 2014, the Legislature amended section 893.135(1)(c) to
move the provision prohibiting trafficking in hydrocodone to its
own subparagraph (section 893.135(1)(c)2.) and reduce the
applicable mandatory minimum to three years imprisonment. See
Ch. 2014-176, § 1, at 2388, Laws of Fla. That amendment became
effective on July 1, 2014. Ch. 2014-176, § 5, at 2413, Laws of Fla.
Trafficking in hydromorphone remained in subparagraph (1)(c)1.,
and still carries a fifteen-year minimum mandatory sentence.
Referring to the current version of the statute, Bigham concludes
that he must have been improperly sentenced for trafficking in
hydromorphone, because hydrocodone is in a different part of the
statute, and carries only a three-year minimum mandatory
sentence.

    The Florida Constitution provides that “[r]epeal or
amendment of a criminal statute shall not affect prosecution or
punishment for any crime previously committed.” Art. X, § 9, Fla.
Const. The purpose of this “Savings Clause” is to “require the
statute in effect at the time of the crime to govern the sentence

to “correct an illegal sentence.” We treat Bigham’s motion as a
motion to correct illegal sentence under rule 3.800(a).



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an offender receives for the commission of that crime.” Horsley v.
State, 160 So. 3d 393, 406 (Fla. 2015) (citing Castle v. State, 330
So. 2d 10, 11 (Fla. 1976)).

     Because the Legislature did not reduce the applicable
mandatory minimum sentence until after Bigham committed his
offense, the 2014 amendment did not apply, and he was properly
charged and sentenced under the 2012 version of the statute. See
Anderson v. State, 42 Fla. L. Weekly D1870 (Fla. 1st DCA Aug.
28, 2017) (holding that the mandatory minimums for trafficking
in hydrocodone provided for in the 2014 amendment to section
893.135(1)(c) did not apply to an offense committed before the
amendment’s effective date). Under these circumstances,
Bigham’s rule 3.800 motion was properly denied.

    AFFIRMED.

B.L. THOMAS, C.J., and MAKAR, J., concur.

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    Not final until disposition of any timely and
    authorized motion under Fla. R. App. P. 9.330 or
    9.331.
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Bobby Bigham, pro se, Appellant.

Pamela Jo Bondi, Attorney General, and Kaitlin Weiss, Assistant
Attorney General, Tallahassee, for Appellee.




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