MARSHAL: LAE BLING , THE FLORIDA -- LADIES AND GENTLEMEN, THE FLORIDASUPREME COURT. P LEASE BE SEATED.

CHIEF JUSTICE: NOW , WE DIDN'T WANT YOU ALL TO FEEL B ADLY THAT EVERYBODY WAS LEAVING BEFORE YOUR ARGUMENT , BUT WE ARE HERE FOR YOU . THE NEXT CASE ON THIS MORNING'S DO CKET IS RE NAUD VERSUS STATE OF FL ORIDA .

THANK YOU , CH IEF JUSTICE PARIENTE. G OOD MORNING, MEMBERS OF THECOURT.I AM MARGARET GOOD E ARN ACY -- GOOD ERNEST , AN AE LLATE DEFENDER FROM WEST PALM BEACH , FLORIDA. TODAY HERE BEFORE YOU ON CERTIFIED CONFLICT , THE PROCEDURAL Q UESTION , THE F OURTH DISTRICT DOES NOT RECOGNIZE A CHALLENGE OF AFFIRMATIVE ALLEGATION THAT THE WRITTEN SENTENCE DOES NOT COMPLY WITH THE ORAL PRONOUNCEMENT AS STA TING A CLAIM FOR A N ILLEGAL SENTENCE.

JUSTICE: LET ME GET RIGHTTO THE PO INT AND ASK YOU THIS QUESTION.DOES IT MAKE A LEGAL DIFFERENCE IN THIS CASE THAT THE WRIT TEN SENTENCE WAS ISSUED AT THE SAME TIM E OR JUST AFTER THE ORAL SENTENCE, SO THAT THE DEFENDANT HAD NOT YET B E GUN T O SERVE HIS SENTENCE ?

THE ANSWER TO THAT IS I DON 'T KNOW, BECAUSE THIS IS THE RECORD. THIS IS ALL OF THE RECORD.IT IS JUST MOTION , THE SPONSES RESPONSES, THE JUDGE'SORD -- THE RESP ONSES , THE JUDGE'S ORDER , AND IN THE OLDER CASES WHEN THE DEFENDANT CLAI MED ISHOULDN'T HAVE GOTTEN THE MANDATORY MINIMUM , I WASN'T IN POSSESSION OF A FIREARM , THE 300-A CASES SAY THAT IS A QUESTION OF FACT AND YOU CANNOT DETERMINE IT FROM THE FACE OF THE RECORD. GENERALLY TH OSE WERE PLE AS .

JUSTICE: IF YOU CAN'T DETER MINE IT FROM THE FACE OF THE RECORD , THEN YOU CAN'T AS SERT IT IN A 3.800 MOTION.

HOWEVER, D UE TO THE LAW AND WITH OVERFELT, THIS C ASE WAS WAY A HEAD OF ARENDI, IT SA ID YOU YOU HAD TO BE INPOSSESSION OF THE INFORMATION, THE ALLE GATION OF POSSESSION OF A FIREARMAND THERE HAD TO BE A SPECIFIC FI NDING BY THE JURY , AND PERHAPS TODAY YOU COULD T ELL FROM THE RECORD WHETHERA PERSON SHOULD GET THE MANDATORY MINIMUM.

JUSTICE: MY QUE STION WAS THE TIMING AND IT SEEMS THAT BOTH OUR CASES AND SOME OF THE DISTRICT COURT CASES BASE THE LAW ON DO UBLE JEOPARDY ANALYSIS AND THE FACT THAT , ONCE A DEF ENDANT GANS SERVING THE SENTENCE,YOU CANNOT CHANGE THAT, B UTIN THIS CASE AARENTLY THE DEFENDANT HAD NOT BEGUN TO SERVE HIS SENTEN CE, WHEN THE W RITTEN SENTENCE WAS ISSUED , AND THEREFORE YOU DON'T HAVE A DOUBLE JEOPARDY PROBLEM.

WELL , I DON'T KNOW I F THAT IS AA RENT , AND THEREASON I SAY THAT IS THIS .

JUSTICE: DO WE HAVE A TRANSCRIPT? WOULD IT BE OBVIOUS FROM THE TRANSCRIPT?

THE DE FENDANT DID AT TACH TO HIS MOTION , A PAGE OF THE TRANSCRIPT OF THE SENTENCING TRANSCRIPT, WHEN THE JUDGE PRONOUNCED THE SENTENCE, ANDI THINK THE ATTORNEY GENERAL WILL AG REE THAT NO MANDATORY MINIMUM WAS PRONOUNCED. HOW QUIC KLY THE JUDGE SIGNS AN ORDER THAT IS DIFFERENT AND MORON REDUCE SENTENCE AND L O NGER - - AND A MORE ONEROUS SENTENCE AND LONGER , I DON'T KNOW THE ANSWER TO THAT AND MOST PE OPLE DON'T.

JUSTICE: THERE HAS TO BE AN ANALYSIS OF THAT , BECAUSE , ONE , A VIOLATION OF A CONSTITUTIONAL NATURE. CORRECT?

YES.

JUSTICE: AND IF NOT , THEN IT BECO MES A PROCEDURAL RULE VIOLATION, AND IT CHAN GES THE NATURE. NOW , IS THAT WHAT WE NEED TOGET AWAY FROM IN ADDRESSING THESE?

I THINK IF, EVEN IF IT IS ONLY M O MENTS LA TER, IF WEHAVE A SITUATION WHERE THE JUDGE PRONOUNCES A FIVE-YEAR SENTENCE IN PRISON AND THEN SOMEHOW THE WRITTEN DOC UMENT SAYS 1 5 , HE HAVE TEN THE DEFENDANT DOESN'T KNOW HOW TO READ AND WRIT E AND DOESN'T LEARN ABOUT I T FOR DECADES , LET'S SAY IT WAS F IVE AND 50 , CAN ST ILL COME BACK AND CL AIM THIS WRITTENSENTENCE DOES NOT CONFORM TO THE ORAL PRONOUNCEMENT, BECAUSE IN FLOR IDA THE ORAL PRONOUNCEMENT IS THE SENTENCE NOT THE WRITTEN DOCUMENT.

CHIEF JUSTICE: BUT ANSWERING JUSTICE LE WIS 'SQUESTION, IS THAT BECAUSE OF THE PROCEDURAL RULE OR BECAUSE OF A CONSTITUTIONAL MANDATE ?

IT IS A CONSTITUTIONAL MANDATE THAT , ONCE, THAT A SENTENCE CAN'T BE ENHA NCED.

CHIEF JUSTICE: I UNDERSTAND BUT WHAT CONTROLS , THE ORAL OR THE WRITTEN PRONOUNCEMENT?

THE ORAL OR THE WRITTEN PRONOUNCEMENT, WHAT CONTROLS IS THE RULE, BECAUSE WE HAVE A RULE THAT SAYS.

CHIEF JUSTICE: SO IT IS A PROCEDURAL ISSUE NOT A CONSTITUTIONAL ISSUE. THE CONSTITUTIONAL ISSUE IS THAT , A F TER A SENTENCE IS ENTERED --

YES.

CHIEF JUSTICE: -- THAT IT CAN'T BE ENHANCED , AND T O ME I HAVE A G REAT INTEREST IN THIS SUBJECT, BECAUSE I HAVE BEEN WORKING WITH VARIOUSCOMMITTEES FOR SEVERAL YEARS , TO T RY TO GET THE WRITTEN SENTENCE ENTERED AT THE SAMET IME OF THE SENTENCING HEARING AND HAVE THE DEFENDANT SIGN IT , AND IT MAY MEAN THAT THE WRITTEN SENTENCE, REALLY, SHOULD CONTROL AND THE DEFENDANT SIGNS IT. OTHERWISE, WE ARE GO ING TO NOT B E ANY CLOSER TO SOLVETHE ISSUE OF THE DISPARITY BETWEEN THE ORAL PRONOUNCEMENT AND THEWRITTEN SENTENCE, BUT I DON'T SEE I F IT IS ALL DONE AT THE SAME HEARING , HOW THERE IS A CONSTITUTIONAL VIOLATION, SO IF YOU COULD ADD RESS THAT ISSUE ABOUTWHY, THEN , IT WOULD HAVE TO BE RA ISED THROUGH OR COUL D IT BE RAISED .

GE NERALLY SPEAKING, IKNOW THE RULE SAYS WE ARE SUOSED TO GET THE WRITTEN DOCUMENT WITHIN TEN DAYS. AS YOU KNOW WITH THE WORK THAT YOU HAVE BEEN DOING , WE DON'T GET IT WITHIN TENDAYS. WE DON'T GET THE DOCUMENT RIGHT AWAY AND THE DEFENDANT DOESN'T SIGN IT, AND IT IS JUST AARENT THAT THAT WRITTEN DOCUMENT IS ENTEREDLATER , SIGNED LATER SOME TIME.

JUSTICE: BUT BACK TO T HIS CASE , PL EASE, YOU NEED TOHELP US.

I DON'T KNOW ABOUT THIS CASE. I CAN'T HE LP YOU WITH THAT BECAUSE I DON'T KNOW. IN EVERY INDIVIDUAL CIRCUIT , HOW THE WRITTEN DOCUMENT GETS ENTERED MIGHT DIFFER , ACCORDING TO THE PRACTICESOF THE CL ERK.

JUSTICE: IN ORDER TO ASSERT A 3.800 MOTION , ISN'T THAT SOMETHING THAT THE DEFENDANT HAS TO ALLEGE IN THE MOT ION? ISN'T IT THE DEFEND ANT'S BURDEN TO SHOW THE COURTTHAT THE DEFENDANT HADALREADY DONE GUN TO SERVE HIS SENTENCE - - HAD A L READY BEGUN TO SERVE HIS SENTENCE AT THE TIME THAT THE WRITTEN SENTENCE HAD BEEN ISSUED. OTHERWISE YOU DON'T HAVE A CAUSE FOR RELIEF IN A 3. 80 0 MOTION.

THAT, ALSO , BRINGS ANOTHER QUESTION OF WHAT DOES THE DEFENDANT HAD T O ATTACH. I THINK THE DEFENDANT ONLY HAS TO AFFIRMATIVELY ALLEGE THAT THERE IS THIS DISPARITY.THEN THE JUDGE HAS TO LOOK AT THE R ECORD WITHOUT AN EVIDENTIARY HEARING, TO S EE IF WE ARE GOING , IF YOUACCEPT THIS AS A DOUBLE JEOPARDY VIOLATION, THAT IS AT LEAST FACIALLY SUFFICIENTTO MAKE A JUDGE LOOK AT THE R ECORD. THE JUDGE LOOK S AT THE RECORD AND THE DATE STAMPEDIN THE CLERK'S OFFICE I S THREE DAYS LATER AS TO WHEN IT IS FILED OR WHEN IT IS SIGNED, THEN THAT I S ENTERED L ATER THAN WHEN THE ORAL PRONOUNCEMENT WAS MA DE IN COURT. THE JUDGE DI DN'T EVEN DO THAT IN THIS CASE .

JUSTICE: IN A SITUATIONLIKE THIS WHERE IT IS ALLEGED .

YES.

JUSTICE: AND YOU SAY YOU DON'T KNOW WHETHER IT IS TRUE OR NOT. WHERE IT I S ALLEGED THAT THEDEFENDANT HAD AN ORAL PRONOUNCEMENT AND A WRITTEN SENTENCE AT THE SAME HE ARING , ISN'T IT INCUMBENT U PON A DEFENDANT AND HIS ATTORNEY IN THAT SITUATION, IT TO BRING IT TO THE COURT'S ATTENTION RIGHT THEN AND THERE? THAT THERE IS SOME DISCREPANCY HERE ?

I DON'T THINK SO BECAUSE IT IS NOT DONE IMMEDIATELY. YOU DON'T , THE DEFENSE ATTORNEY DOES NOT SEE THE WRITTEN DOCUME NT AT THAT TIME.

JUSTICE: AS I UNDERSTOOD THE FACT S OF THIS CASE , THAT IT WAS IN FACT DONE AT THE SAME HEARING.

WE DON'T KNOW BECAUSE THERE IS NO SENTENCING DOCUMENT IN THIS RECORD . WHEN THE 3.800-A , THEY ARE GENERALLY FILED PRO SE BY DEFENDANTS, THE RULE REQUIRES AN AFFIRMATIVE ALLEGATION .

JUSTICE: LET ME CLARIFY. LET ME GO O THE RULE SAYS, IF IT IS AFFIRMATIVELY ALLEGED THAT THE COURT RECORDS DEMONS TRATE ON THEIR FACE, AN ENTITLEMENT TO RELIEVE. YOU SEEM T O BE INVERTING THE RESPONSIBILITY AND RESP ONSE TO JUSTICE CANTERO 'S Q UESTION.

SO IF THE DEFENDANT ALLEGES I WAS SENTENCE D IN COURT TO FIVE YEARS IN PRISON, AND THE WRITTEN SENTENCE THAT WAS ENTERED LATER HAS 15 YEARS , ON ITS FACE THAT ALLEGES A DOUBLE JEOPARDY VIOLATION.

JUSTICE: DOES IT DEMONSTRATE , ABSENT THAT IT W AS, THE SENTENCE WAS LATER , DOES IT DEMONSTRATE ON ITS FACE, AN ENTITLEMENT TO RELIEVE TH OUGH ? I GUESS THE FUNDAMENTALPOINT IS, THE MOTION HAS TO SUFFICIENTLY ALLEGE ON ITS FACE --

CORRECT .

JUSTICE: -- THAT THE RECORDS DEMONSTRATE ENTITLEMENT TO THE RELIEF.

AND YOU ARE PO INTING OUT SOME DETAILS IN PROCEDURESTHAT THIS 3. WILL 00-A DOESIN THE -- THIS 3.80 0-A DOES NOT REFLECT. THE FIRST LINE O F 3.800 A IS PLEASE REME MBER I AM A PRO SE PR ISONER AND YOU ARE SUOSED TO LIBERALLY CONSTRUE WHAT HE WAS SAYING AND WHAT HE WAS SAYING IS I WAS ORALLY PRONOUNCED A SENTENCE AND THE DOCUMENTS, I DON'T THINK IT WAS ENTERED LATER , LET US JUST A S SUME THAT THE JUDGE CAN LOOK AT THE SENTENCING RECORD TO SEE WHETHER THEY WERE ENTERED LATER , THAT ALLEGES A DOUBLE JEOPARDY VIOLATION. IF HE GETS BEYOND THE THRESHOLD OF ALLEGING A CLAIM, THEN THE COURT HAS TO EXAMINE THE RECORD OF THE COURT CASE, AND I DON'T THINK THE BURDEN SHOULD BE ON THE DEFENDANT TO ATT ACH THE COURT RECORDS TO HIS ALLEGATION, BECAUSE IT IS THE COURT AND THE STATE THAT HAVE THE G REATER RESOURCES AND HAVE A CCESS TO THE RECORD. HE CAN JUST ALLEGE WHAT IT IS HE IS ALLEGE ING. I AM ALLEGE ING AN ENHANCEMENT OF SENTENCE AFTER IT WAS INITIALLY ENTERED. ONCE HE ALLEGE S THAT , THEN THE COURT HAS TO JUST LOOK AT THE RECORD, AND A N OTHER POINT OF CONFLICT WITH THE F OURTH DISTRICT SEEMS TO POINT OUT IN THESE CASES AS TO WHY THEY ARE DIFFERENT IS BECAUSE THE OTHER DISTRICT COURTS SEEM TO SAY , AND THE TRIAL COURT DI DN'T ATTA CH PORTIONS OF THE RECORD TO S HOW , THE SAME LANGUAGE THEY USE IN 3.8 50 T O AFFIRMATIVELY SHO W HE WAS ENTITLED TO NO RELI EF. THAT IS NOT THE LANGUAGE OF THE RULE, BUT I SUB MIT THAT , WHEN THE JUDGE G O ES TO THE RECORD, WHO HAS THE COURT RECORD WITHOUT AN EVIDENTIARY HEARING, HE SAYSI HAVE LOOK ED AT THIS JUDGMENT, AND I HAVE LOOKED AT THE SENTENCING PRONOUNCEMENT , AND THEY SEEM TO BE CONTEMPORANEOUS. I AM GOIN G TO DE NY IT. THEN HE HAS TO ATTACH WHATHE LOOKED AT, IN ORDER TO MAKE AN AELLATE RECORD.IF HE LOOKS AT THE TWO AND SAYS OH, NO , THESE ARE DIFFERENT. THIS WAS INTORD DAY ON E AND THIS ENTERED ON DAY FIVE AND SO THAT IS AN ENHANCEMENT AND SO ON ITS FACE , YES, IT SEEMS TO BE A TROU BLE JEOPARDY VIOLAT ION. THEN HE GRANTS THE MOTION AND STRIKES THE ENHA NCEMENT .

CHIEF JUSTICE: AS WE THINK ABOUT AND LOOKING AT WHETHER WE ARE AMENDING OR GOING TO AMEND THESE RULES AND ABOUT WHE THER THIS IS SOMETHING THAT SHOULD BE RAISED WITHIN THE TWO-YEAR PERIOD OR FO REVER , IT SEEMSTO ME ALTHOUGH YOU ARETALKING ABOUT A PRO SE DEFENDANT WHO HAD COUNSEL AT THE SENTENCING HEARING , H AD AN AE AL, HAD A 3.850, THAT THE RECORD OF THE , THAT THE SENTENCE WHICH IS THERE AS THE WRITTEN SENTENCE , IS WHAT THE DEPARTMENT OF CORRECTIONS HAS , AND , OF COURSE, THIS PERSON IS SERVING T H REE LIFE SENTENCES , SO WE ARE KIND OF TALKING VERY ACADEMIC HERE , SINCE ABOUT WHET HER HE GETS A TEN -Y EA R MANDATORY ON THR EE LIFE SENTENCES , CORRECT, BUT IT SEEMS IN THAT SITUATION THAT YOU KNOW, THIS IDEA THAT FOREVER, LIKE , 50 YEARSLATER, THAT WE ARE SAYING THAT THE JUSTICE SYSTEM SHOULD G O B ACK AND FIND THEJUDGE WHO PRONOU NCED THE SENTENCE AND DETERMINEWHETHER IT WHAT IS DONE ON THE SAME DAY OR NOT , SEEMS LIKE IT IS REVERSING THE B URDEN , WHEN IT IS OU T OF THE TWO-YEAR PERIOD, AND THAT IS WHAT WE ARE REALLY TALKING ABOUT HERE , TAKES TO WHETHER AT SOME POINT , THE PRINCIPLE OF THE ORAL PRONOUNCEMENT TRUMPING THE WRITTEN SENTENCE , BECOMESNOT A QUESTION OF A LEGALITY BUT THAT, AT THE POINT THAT THE DEFENDANT , A FTER TWO YEARS, THAT THE WRITTEN SENTENCE OUGHT TO CONTROL , AND IF THAT SENTENCE WAS ENH ANCED BE YOND THAT DEFENDANT'S UNDERSTA NDING , THEN HE WOULD HAVE TO AFFIRMATIVELY SHOW THAT , AND SO WHAT IS THE ANSWER TO THAT? THAT IS THAT YOU ARE LOOKING TO THE ORAL PRONOUNCEMENT AS BEING SOMETHING THAT THECOURT WILL HAVE TO FIND ANDDETERMINE , AND I AM JUST WONDERING HOW THAT IS A FAIR ALLOCATION OF A BURDEN FORSHOWING AN ILLEGAL SENTENCE .

I THINK THAT IS A FAIR ALLOCATION, BECAUSE THE COURT IS IN CHARGE OF THE COURT RECORD. I AM , AND I A GREE THAT I AM SPEAKING, HERE, WE ARE TALKING ABOUT , MORE ACADEMICALLY THAN ON BEHA LF MR . RENAUD.

CHIEF JUSTICE: YOU DO AGREE WITH THAT.

HE HAS A RIGHT TO HAVE HIS SENTENCE BE CORRECT , AND IT IS MORON REDUCE TO HAVE A -- MORE ONEROUS TO HAVE A LIFE SENTENCE WITH A TEN-YEAR MANDATORY THAN WITHOUT , AND FOR THAT REASON I AM HERE , BECAUSE IT IS NOT ENTIRELY ACA DEMIC AS TO HIM .

JUSTICE: HOW WO ULD WE HAVE DEFINED THE BEGINNINGOF THE SERVING OF A SENTENCE. CAN YOU HELP US WITH T HAT?

WHEN THE DEFENDANT IS REMOVED FROM THE COURT ROOMTO BEGIN TO SERVE THE SENTENCE IS THE WAY TR OPE VERSUS R OWE DEFI NED IT AND I WOULD LIKE TO ADVOCATE THATYOU NOT PUT A TWO- YEAR LIMIT ON A CONSTITUTIONAL CL AIM OF A SENTENCE, AND I WANT TO REFER THE COURT BACK TO ONE O F THE FIRST DOUBLE JEOPARDY CASES THAT THEY FO UND ENHANCED SENTENCE , IN HOING.IN THAT CASE HE GOT 30 MONTHS INCARCERATION FOLLOWED BY 36 MONTHS SENTENCING IN PRISON , AND HE THOUGHT IT WAS A 6 SIX-MONTH SENTENCE, AND H E FILED A CORRECTING ORDER AND THE JUDGE FOUND THAT WOULD BE A VIOLATION SO HE CORRECTED IT AND HE CORRECTED TO, THOUGHT TEINGT CORRECTED TO 66 MONTHS. THE STATUTORY MAXIMUM FOR A THIRD-DEGREE FELONY , IT WAS CORRECTED , AND THEN SOMEBODY HELPED HIM WITH HIS MA TH AND THEN THEY SAID, NO , THAT WAS AN ENHANCEMENT. EVEN THOUGH YOU ASKED THEJUDGE TO DO THAT, THE JUDGECOULDN'T DO THAT , SO THAT WAS A VIOLATION OF DOUBLE JEOPA RDY , SO HE FILED A SECRETARY 3.800 MOTION AND SAID MY SENTENCE WAS ENHANCED AFTER I BE GAN TO SERVE IT , CHANGED FROM 30 MONTHS TO 60 MONTHS, AND THIS COURT IN HOING SAID THAT THE ALLEGATION THAT THIS IS AN ILLEGAL SENTENCE IN VIOLATION OF DOUBLE JEOPARDY CAN BE DETERMINED AS A PARTY OF LAW , AND WE CAN SEE THAT AF TER IT WAS IMPOSED , THROUGH A SERIES OF HAEN H A STANCE AND -- HAENSTANCE AND UNFORTUNATE CIRCUMSTANCES , IT WAS ENHANCED, AND THE DEFENDANT CAN'T AGREE TO A N ILLEGALSENTENCE, SO THERE NEEDS TO BE A PROVISION IN OUR LAW.

CHIEF JUSTICE: THAT IS WHERE THE ENHANCEMENT WAS BEYOND WHAT THE LIMIT WAS FOR THAT PARTIC ULAR --

THE STAT UTORY MAX IMUM.

CHIEF JUSTICE: THAT IS, N OW, IN A WHOLE D I FFERENT , A DIFFERENT T YPE OF ILLE GALITY . I THINK EVERYBODY AGR EES.

THAT CAN ALWAYS BE RA ISED BUT HE GOT HIS 30-MONTH ORIGINAL SENTENCE BACK, BEFORE IT HAD BEEN CH ANGED - -

CHIEF JUSTICE: THE VALUETHERE IS NOT SERVING MORE THAN WHAT THE STATUTORY MAXIMUM WOULD BE. NOW LE T'S GET BACK TO MYISSUE , WHICH IS THAT THE, IN THIS CASE , AT A CERTAIN POINT IN T IME AFTER HE STARTS SERVING THE SENTENCE , ISN'T , SHO ULDN'T THER E BE APRESUMPTION THAT THE WRITTEN SENTENCE CONTRO LS NOT THE ORAL PRONOUNCEMENT , IF IT IS NOT CHALLE NGED FOR , IN A TWO-YEAR PERIOD FOR THE 3.850 , BECAUSE OTHERWISE , AGAIN , YOU ARE HAVING THE JUDGE HAVING TO , YOU KNOW , DECIDE, AND A TRANSCRIPT ANDTO SEE WHAT WAS PRONOUNCED. WHY WOUL DN'T THERE BE APRESUMPTION THAT THEY WERE ENTERED AT THE SAME TIME ?

WELL , CURRENTLY THERE IS NOT SUCH A PRESUMPTION IN FLORIDA LAW, AND I WOULD BEGTO DIFFER WITH YOU AS T O HOING WASN'T JUST ABOUT THE STATUTORY MAXI MUM. IT WAS ABOUT THE FACT THAT HE WAS SENTENCED TO IMPRISONMENT TO 30 MONT HSAND THEN IT WAS INCREASED TO FIVE YEARS, AND THAT WAS AN I LLEGAL ENHANCEMENT OF THESENTENCE, DONE AT HISREQUEST , YOU KNOW, BECAUSE HE HAD DONE THE MATH WRONG.

THAT WASN'T THE SITUATION HERE, WHERE THE WRITTEN ORDER WAS ENTERE D ON THE SAME DAY , AND I THINK THAT IS WHAT WE ARE TRYING TO GET AT.

I DON'T KNOW THAT THE WRITTEN ORDER WAS ENTERED ON THE SAME DAY , JUSTICE CAN CAN'T. THAT IS WHAT I AM SAYING.

JUSTICE: ISN'T THAT SOMETHING THAT YOU HAVE TOALLEGE AND SHOW THAT IT WASNOT DONE ON THE SAME DAY , IN ORDER TO HAVE A 3.800MOTION?

I DON'T KNOW THAT ANY CASE HAS REQU IRED SUCH RESITUATION IN ALLEGA TIONS -- PRECISION IN ALLEGATIONS JUST TO STATE THE THRESHOLD C LAIM IN A PRO SE PETITION.HE DID SAY THAT I WAS FIRST SENTENCED , WITHOUT A MANDATORY MIN IMUM, AND THEN LATER THE WRITTEN SENTENCE HAS, AND THAT IS ALL HE SAID . NO, HE DIDN'T SAY WITH UTMOST TECHNICALITY , THE EXACT DIFFERENCE IN TIME SPAN. HE DID NOT SAY. THAT I AGREE HE DIDN'T SAY THAT.

JUSTICE: DOESN'T THE FACT THAT YOU SAY WE DON'T KNOW THIS, THAT THE RECORD DOESN'T SU ORT IT , DOESN'T THAT SUORT THE FACT THAT THIS SHOU LD BE A 3.85 0? IT SHOULD BE BROUGHT AS A , UNDER A 3.850 , AND IT IS NOTON ITS FACE , A 3.800SITUATION.

I CONT INUE TO MAINTAIN ITIS A 3.800 SITUATION, BECAUSE WHAT HE DID ALLEGE WAS SUFFICIENT TO HAVE THE STATE AND THE JUDGE LOOK A T THE RECORD , WHICH IS THE JUD ICIAL RECORD , WHICH WAS ASCERTAINABLE IN THIS CASE . THERE ARE CA SES IN WHICH THEY FIND THAT A PORTION OF THE RECORD IS THE TRANSCRIPT , WHEN IT HAS BEEN PRE PARED FOR AEAL . THERE ARE CASES AND THEREWILL BE TIMES, WHEN IT WILL BE MORE IMPORTANT THA N IT IS, PERHAPS TO MR . RE NAUD , AND IT D O ESN'T ARISE AND THEY DON'T FIND OUT FOR MORE THAN TWO YEARS.

JUSTICE: ARE THERE CASES WHERE THERE WAS NO TRANSCRIPT OF THE SENTENCING?

YOU ME AN IN THE SENTENCE THAT THERE WAS NO TRANSCRIPT OF THE SENTENCING ATTACHED?

JUSTICE: NO , WHERE THERE IS NEVER A TRANSCRIPT MADE OF THE SENTENCING HEA RING.

THERE IS ONE CASE WHERE THE JUDGE DENIED IT WITHOUT LOOKING AT THE TRANSCRIPT , AS O OSED TO LOOKING IT AT THE SENTENCING ORDER AND THE DISTRICT COURT SENT IT BACK .

JUSTICE: MY QUESTION IS MORE GENERAL. IN CASES WHERE DEFENDANTS E ITHER P LEAD GUIL TY AT SENTENCING OR SOMETHING LIKE THAT, ARE THERE CASES WHERE THERE IS NO T RANSCRIPT I N THE RECORD , A T THE TIME THE 3.800 MOTION WAS FILED BECAUSE NO TRANSCRIPT OF THE SENTENCING HEARING WAS EVER ORDERED?

AND THAT IS CORRECT. IT IS POSSIBLE TO RAISE THIS ISSUE ON A GU ILTY PLEA YEARS LATER, WHEN NO AEAL WAS TAKEN AND NO TRANSCRIPT HAS EVER BEEN PREP ARED , Y ES, S IR.

JUSTICE: LET ME ASK YOU ONE MORE ACADEMIC QUESTION. YOU MENTIONED THAT THERE IS A CASE THAT WE SAID THAT THE SENTENCE BEGINS WHE N THEY L EAVE THE COURTROOM ? TO SERVE .

I THINK THAT WAS TR OPE VERSUS ROWE , WHICH IS THE CASE - -

JUSTICE: LET ME ASK YOU AQUESTION THAT HA ENS ALLTHE TIME. LET'S SAY YOU HAVE A DEFENDANT SERVE AGO COUNTY JAIL SENTENCE.HE IS IN THERE FOR A YEAR AND THEN HE IS CO MES AND SENTENCED ON A SE PARATE CASE TO STATE PRISON BUT HE DOESN'T SERVE THAT CASE UNTIL HE COMPLETES THE COUNTY SENTENCE OR THE OTHER SENTENCE. HOW DOES THAT F I T IN THAT CONTEXT , AS FAR AS WHEN YOUBEGIN TO S ERVE THE SENTENCE?

I THINK THAT HE ACTUALLY BEGINS TO SERVE THE SENTENCE , IN THE SEN SE THAT HE GETS CREDIT FOR TIME SERVED, I F IT IS A CASE WHERE HE I S GOING TO GET C REDIT FOR TIME SERVED IN THE COUNTY JAIL.

CHIEF JUSTICE: YOU ARE IN YOUR REBUTTAL , I WA NT TO REMIND YOU.

I AM I N MY REBUTTAL AND I WILL SIT DO WN NO W. THANK YOU. JUST SJUTS BEFORE YOU SIT DOWN, PLEASE UNDERSTAND THE COURT IS CONCER NED WITH A WRITTEN ORDER BEING ENTEREDAT THE SAME HEARING AT THE SAME TIME.

YES. YOU ARE CONCERNED THAT IT SHOULD BE DONE .

JUSTICE: WE ARE CONCERNED WITH THAT ISSUE, THAT IT HAP PENED IN THIS CASE.HAVE YOU RESPONDED TO OURCONCERNS TO YOUR SATISFACTION?

MY RESPONSE IS I DO NOT KNOW WHEN THE WRITTEN ORDER --

JUSTICE: THAT IS NOT A RESPONSE. I WANT YOU TO A C CEPT , IF YOUWILL ACCEPT FOR THE PURPOSEOF THIS ARGUMENT THAT THEWRITTEN ORDER WAS ENTERED ONTHE DAY OF THE ORAL PRONOUNCEMENT AT THE SAME HEARING AT THE SAME TIME .

YES.

JUSTICE: WOULD YOU PLEASE ADDRESS THAT AS TO YOUR LEGAL ARGUMENT.

IF IT WAS ENTERED IN THESAME HEARING AT THE SAME T IME .

JUSTICE: YES, MA'AM.

THEN YOU STILL , HE COULD STILL MAKE A CLAIM THAT HE DOESN'T QUALIF Y FOR IT . YOU HAVE TO LOOK AT THE FACE OF THE RECORD , TO SEE IF THE INFORMATION AND THE VERDICT MAKE THE ADEQUATE FIND INGS TO QUALIFY HIM FOR IT, ANDTHEN, YES , HE COULD IN FACT , G ET THE MANDATORY MINIMUM.

JUSTICE: BUT THE ISSUEWOULD BE THAT , IF IT IS THEN CHANGED , IS IT A PROCEDURAL VIOLATION OR IS IT AN ILLEGAL SENTENCE UNDER DOUBLE JEOPAR DY?

I ACTUALLY THINK IF THE TIMING IS SIMULTANEOUS.

JUSTICE: YES, MA'AM.

IT IS MORE , THEN IT WOULD BE MORE LIKE ARENDI ISSUE, WHERE YOU ARE ARGU ING THAT IT IS NOT ALLEGED AND THE FACTS WERE NOT FOUND BY THE JURY . THAT WOULD NOT BE A DOUBLE JEOPARDY VIOLATIO N. THAT WOULD JUST BE A DUE PROCESS VIOLATION, BUT IF THEY WERE ENTERED SIMULTANEOUSLY, WHICH IT IS MY BELI EF THAT IS NOT CURRENTLY THE PRACTICE IN MOST CIRCUIT COURTS IN FLORIDA , THEN THAT IS NOT A DOUBLE JEOPARDY VIOLATION. DID I ANSWER YOUR CONCERN?

JUSTICE: YOU ANSWERED. THANK YOU .

THANK YOU.

CHIEF JUSTICE: WE HAVE, WITH YOUR -- WITH OUR HELP,USED UP YOUR TIME.

GOOD MORNING. MELANIE DALE SURBER ON BEHALF OF THE STATE. I WANT TO POINT OUT ON SECOND GLANCE , WITH RE GARD TO JURISDICTION, WHEN YOU YOU LA Y THE CASES SIDE-BY-SIDE THERE IS A CLEAR FACT UA L DIFFERENCE. IN B OTH FITZPATRICK AND BETHUNE , THERE WAS A DISCRETION ISSUE. ONCE IT IS INDIVIDUALIZED, THEN A MINI MUM MANDATORY COMES INTO PLAY. IN THIS CASE THIS DEFENDANT WAS FOUND GUILTY UNDER 10-20-LIFE, WHERE THE JUDGEWAS REQU IRED UNDER D E ALAS AND ROW TO -- UNDER D' ALLESSANDRO , TO O OSE THAT.

THERE IS A CONFLICT HERE , YES?

YES.

JUSTICE: SO I F HE THEREIS NO CONF LICT AT ALL AND ONE IS IS A CRIMINAL AND ONE IS A CI VIL CASE , WE WOULD COMPARE THE CASES.

YES .

CHIEF JUSTICE: HOW A BOUTTHE FACTUAL DIFFERENCES? DOES THE STATE AGREE, THAT IS AL WAYS TOUGH BEGINNING, BUT DOES THE STATE AGREE THAT, IF THERE IS A DIFFERENCE WHERE THERE IS A ORAL PRONOUNCEMENT AND THEN A MONTH LATER , THE WRITTEN SENTENCE IS ENTERED , THAT THAT IS DIFFER ENT, AND THEY DIFFER , THE WRITTEN SENTENCE IS MORE ONEROUS , THAT IF THEWRITTEN SENTENCE IS ENTEREDAT THE TIME OF THE SENTENCING HEARING AND THEREIS A DIFFERENCE BETWEEN THE ORAL PRONOUNCEMENT, IS THAT A DIFFERENCE FOR ILLEGALITY PURPOSES?

IT CAN BE. IN THIS CASE IT DOESN'T MATTER, BECAUSE THE DEFENDANT'S ARGUMENT IS THATTHE WRITTEN SENTENCE IS ILLEGAL.THAT IS NOT THE CASE HERE. TO REALLY G ET TO THE MEAT OF IT, WHAT WOULD HAVE BEEN ILL EGAL WOULD HAVE BEEN THE ORAL PRONOUNCEMENT, AND THE STATE COULD HAVE BROUGHT THIS DEFENDANT BACK WITH OUT VIOLATING DOUBLE JEO PARDY, TO ORALLY PRONOUNCE.

JUSTICE: I DON'T THINK IT IS BEING ARGUED THAT IT DIFERRED F ROM WHAT WAS SA ID. THEY ARE ARGUING THAT THE DIFFERENCE IS ILLEGAL , EVEN IF THE ORAL PRONOUNCEMENT WAS WRONG , THEY ARE CLAIMHAD GONE THAT THE ORAL PRONOUNCEMENT GOVE RNS FOR PURPOSES OF SENTENCING , EVE N IF IT CONFLICTS WITH A CORRECT WRITTEN SENTENCE, AND THAT SEEMS TO BE THE CASE, WHERE THE DEFENDANT HAD ALREADY BEGUN SERVINGHIS SENTENCE, SO THE QUESTION HERE IS WHETHER THE DEFENDANT IN FACT, HAD BEGUN SERVING HIS SENTENCE ATWHICH TIME IS NOT WHETHER THE WRITTEN ORDER WAS ILLEGAL PER SE.

I UNDERSTAND THAT. HOWEVER , ASHLEY I S KIND OF THE DOUBLE JEOP ARDY CASE THAT BRINGS THIS ALL TO THE FOREFRONT BEFORE THIS COURT AND ASHLEY HAS BEEN INTERPRETED BY THE FI FTH D CAIN A VERY SIMILAR SITUATION. HOWEVER , AS I SAI D MY DEFENDANT WAS N EVER BROUGHTBACK TO COURT FOR RESENTENCING, AND THE SENTENCING ORDER HAS THESAME DATE AS THE ORAL SENTENCING PROCEEDING.

CHIEF JUSTICE: SO, A GAIN , I THOUGH T THAT WAS WHAT I WAS ASKING YOU , WHICH IS THAT IN A SIT UATION WHERE THEY ARE DONE IN THE SAME SENTENCING HEARING , THAT PRESENTS A DIFFERENT QUESTION FOR PURPOSES OF 3.800 , THAN IF IT OCCURS IF THE WRITTEN SENTENCE OC CURS A MONTH LATER .

YES. FOR THIS CASE. IT DOES. BECAUSE, I MEAN , I THINK IT REALLY COMES DOWN TO CASE-BY-CASE ANAL YSIS WHETHER OR NOT A 3.800-A IS GOING TO BE PROP NE ARLY A CERTAIN SCENARIO , BECAUSE YOU HAVE TO LOOK AT --

CHIEF JUSTICE: WELL, YOUR ARGUMENT ABOUT HOW THE TEN-YEAR MAND ATORY MINIMUM IS MANNEDTORILY IMPOSED AND IT WOULD BE IM PROPER , AG AIN , MS. GOOD -EARNAC Y IS T ALKING A BOUT THE ARENDI ISSUE. WE ARE TRY ING TO STAY WITH THE ORAL PRONOUNCEMENT AND IF THAT CAN BE RAISED AT ANY TIME OR WHETHER THAT CAN BE R AISED IN A TWO-YEAR PERIOD O F TIME, SO IF THIS CASE FACTUALLY PRE SENTS A SITUATION WHERE THEY WERE PRONOUNCED AT THE SAME HEARING , THEN THAT IS A SIGNIFICANT FACTUALDISTINCTION FROM THOSE CASES WHERE THE PRONOUNCEMENT, THE WRITTEN SENTENCE IS PRONOUNCED, WERE ENTERED SUBSEQUENTLY.

YES. IT IS VERY DIFFERENT. AND I THINK THAT IS WHAT, THAT, I MEAN AS SPECIFIC TO THIS CASE, YOU GO TO WHAT IS PROPERLY RAISED ON 3.800-A, WHICH IS REA LLY THE , IS THIS AN ILLEGAL SENTENCE AND IT IS NOT IN THIS CASE , AND IT WAS MORE PRO PERLY RAISED EITHER IN THE 3.800-B-2 OR IN A 3.850 , WHICH THEDEFENDANT HA D IN THIS CASE. PROCEDURALLY THIS DEFENDANT HAD HIS DIRECT AEAL, HAD A 3.850. THEN HAD A SUCCESSIVE 3.850IS HO W THIS ISSUE WAS A CTUALLY RAISED , AND THESTATE CONCEDED , YES, THEREIS A DIFFERENCE BET WEEN THEOR ALAN WRITTEN. HOWEVER, YOU CAN NOT RAISE IT HERE UNDER THE FOURTH D KRACHLT CASE LA W AND THAT OR ALAN WRITTEN IS NOT - - DCA CASE LAW AND THAT ORAL ANDWRITTEN IS NOT SOMETHING THAT GETS RAISED IN A 3.800-A, AND THAT IS OOSEDWITH RE SPECT TO CAMPBELL AND WHAT CONSTITU TES ILLEGA L, AND I THINK THEY ARE CORRECTTHAT IN T HIS CASE THIS IS NOT ILLEGAL .

CHIEF JUSTICE: DO YOU , THE RULE THAT THE ORAL PRONOUNCEMENT PREV AILS OVER THE WRITTEN SENTENCE , IS THAT CONSTITUTIONALLY BASED OR RULE-BASED?

IT IS RULE-BASED PROCEDURALLY. IT IS 3. 1.

CHIEF JUSTICE: WHAT IS THE POLICY? IS THERE A CONSTITUTIONAL POLICY BEHIND THAT, DO YOUKNOW, FROM A POINT OF VI EW OF CONSTITUTIONAL OR STATUTORY LAW OR THE CASE LAW OF THIS COURT, WH Y THAT DEVELOPED?

NO, I DON' T, BECAUS E THE WAY THIS CASE DEVELOPED , I THINK THE DEFENDANT WAS TRYING TO BR ING IT UP THATTHERE MIGHT BE A DOUBLE JEOPARDY IMPLICATION, BUT I THINK THAT THAT IS NOTSPECIFIC TO THIS CASE. THERE IS NO DOUBLE JEOPARDY IMPLICATION, SO IT DOESN'T RAISE TO THE LEVEL OF CONSTITUTIONAL VIOLATION .

CHIEF JUSTICE: WELL , AGAIN , THE RE WOULD B E A DOUBLE JEOPARDY VIOLATION IF THE SENTENCE IS ENHA NCED BY THE WRITTEN SENTENCE , A FTER HE BEGINS SERVING THE SENTENCE, LIKE OCC URRED IN ASHLEY.

NO , AND I THINK THAT IS WHAT GETS ME TO THE INTERPRETATION OF ASHLEY,WITH RESPECT TO STATUTORILYLY IMPOSED M INIMUM MANDATORY UNDER 10-20-LIFE VER SUS MINI MUM MANDATORY . I INTERPRETED ALLEN UNDER THE SE PARATE SITU ATION , BUTSIMILAR WHERE THE DEFENDANT WAS CONVICTED UNDER THE 10-20-LIFE STATUTE. IT WAS ATTEMPTED TO IMPO SEAND THE STATE WAS PERMITTED TO BRING BAC K THE DEFENDANTAND IMPOSE THE H I GHER MINIMUM MANDATORY , I BE LIEVE ERRONEOUSLY A THREE-YEAR MIN IMUM, SO THAT DOESN'T JEOPARDIZE BECAUSE THE ORAL SENTENCE WAS ILLEGAL IN THAT CASE.

JUSTICE: IS THAT SOMETHING THE STATE COULD HAVE RAISED ON AEAL? S AY THE STATE DIDN'T REALIZE IT UN TIL SO METIME LATER. COULD THE STATE RAISE AN ISSUE ON AEAL THAT THE TRIAL JUDGE'S SENTENCE WAS ERRONEOUS?

I THINK THAT IS WHAT , A FTER ASHLEY, THAT IS WHAT ALLEN SEEMS TO SAY , ONLY IN A SITUATION WHERE THE ORAL PRONOUNCEMENT WAS COMPLETELY ILLEGAL , WITH RESPECT TO, SAY , A 10-20-LIFE STATUTE. I THINK IT DEPENDS , WH EN YOU GET INTO AREAS SUCH AS HABITIZATION BECAUSE THEY ARE DISCRETIONARY. SO THAT IS WHERE, WHEN YOU GET TO THE DOUBLE JEOPARDY CONCERN , YOU NE ED TO LOOK AT WHERE IS IT GOING TO GO. IN A CASE LIKE THIS WITH A 10-20-LIFE MINIMUM MANDATORYINVOLVED, THE JUDGE CANN OT DEPART .

CHIEF JUSTICE: IT DOES SEEM TO ME AND I WAS LO OKING AT MY FOOTNOTE IN ASHLEY , ABOUT THIS, TRYING TO GET WRITTEN SENTENCES ENTERED AT THE TIME OF THE HEARING, THAT THE STATE HAS A SUBSTANTIAL RESPONSIBILITY IN THIS AREA, TO TRY TO SEE THAT THESE THINGS ARE OCCURRING , AS SENTENCING IS BECOMING MORE AND MORE COMPLICATED.YOU KNOW , TO SO RT OF SAY IT IS ALL UP TO THE JUDGE, WHEN THE SENTENCING LAWS CHANGE E VERY YEAR , THAT IT , REALLY , OUGHT TO BE THE STATE'S RESPONSIBILITY TO MAKE SURE THAT AN AC CURATE SENTENCE IS PRONOUNCED AT THE TIME OFTHE SENTENCING HEARING, IF THESE ARE MANDATOR Y. IF THE JUDGE HAS NO C HOICE . DO YOU AGREE WITH THAT?

WELL , I THINK IT SHOULD BE WE NEED TO M AKE SURE THAT THE OR ALAN THE WRITTEN ARE COMPLY -- THE ORAL, AND THE WRITTEN, ARE COMPLYING WITH EACH OTHER. HOWEVER IN THIS CASE AGAIN , WE DON'T HAVE ALL THERECORDS. FRANKLY THIS IS MY FIRST AEARANCE IN THIS CASE. WE HAVE POSTCONVICTION. IT WAS A SUMMARY D E NIAL , I N EVER AEARED IN THE DISTRICT COURT BELOW AND ALLI HAVE IS THE RECORD, SO I DON'T KNOW WHAT HAENED ATTHE SENTENCING HEARING. I ONLY HAVE THE INTERPRETS THAT ARE ATTACHED.

JUSTICE: IS THIS SOMETHING THAT YOU COULD DETERMINE FROM THE DOCKET SHEET, THAT THE SENTENCE , THE ORAL PRONOUNCEMENT AND THE WRITTEN ORDER WERE ISSUED ON THE SAME DAY? IS THAT SOMETHING THAT ONE CAN DISCERN FROM THE DOCKET?

I THINK SO. I THINK IN THIS CASE THERE IS NOT EVEN A QUESTION. I THINK WE KNOW HE WAS ORAL LY PRONOUNCED AUGUST 30 , AND I KNOW THERE IS A DATE ON SOMEOF THE SENTENCING ORDE RSTHAT ARE ATTA CHED OF A U GUST 3 0.

JUSTICE: WE DON'T KNOW. WHY IS THERE DISCREPANCY THERE?

WE KNOW THAT THE SENTENCING ALL HA ENED ON AUGUST 30.I THINK THAT THAT WAS CONCEDED BY THE STATE BELO W,IN THE 3.850 RESPON SE THAT HE FI LED TO THE SUCCESSIVE MOTION. THE STATE CONCEDED THATTHERE WAS AN OR ALAN A WRITTEN -- AN ORAL, AND A WRITTEN DONE ON AUGUST 30 , B UT THEY SEEM TO BE DIFFERENT WHERE THE ORAL DID NOT ANNO UNCE THE 10-YEAR MINIMUM MANDATORY UNDER 10-20-LIFE, SO I THINK W E KNOW THAT HE WAS SENTENCEDON AUGUST 30, SO FRANKLY I THINK YOU CAN DETERMINE THAT FROM THE DIRECT AEAL RECORDS , BUT WE ARE ON 3.800-A.WE ONLY HAVE WHAT IS ATTACHED, SO REALLY ON ITS FACE, YOU HAVE TO LOO K. THE TRIAL JUDGE FOUND TO BE SUCCESSIVE 3.850 AND NOT A PROPER CLAIM TO BE RAISED IN 3.800-A , BECAUSE ON ITS FACE IT DIDN'T AEAR TO BE ILLEGAL , WHERE THE WRITTEN WAS AN ILLEGAL SENTENCE.

JUSTICE: I A M A LI TTLE CONCERNED ABOUT THE AREA OF YOUR DISCUSSION OF 3.800 AND THE RIGHTS THAT THE STATE MAY HAVE UNDER THAT AND THE SULEMENTATION BY ALLEN. AS THIS RULE WAS PASSINGTHROUGH THE SYSTEM AND BEING ANALYZED, THE ISSUE WAS PRESENTED, SHOULD THE STATE HAVE ACCESS TO RE LIEVE UNDER THE .800 , AND THE SAME -- UNDER THE 3.800 AND THE DOUBLE JEOPARDY K IND OF CONCEPT WAS ASSERTED , AND IT IS MY RECORD OF THOSEDISCUSSIONS THAT THE 3.8008 WOULD BE U SED BY THE STATE TO LESSEN SENTENCES NOT TO INCREASE SENTENCING. ALLEN AND YOUR ARGU MENT THIS MORNING SEEM TO RUN HEADLONG INTO THAT CONCEPT. WOULD YOU CARE TO COMMENT ON THAT?

YES. I THINK THERE IS A B IG DIFFERENCE BET WEEN 3.800-B-2 AND 3.800-A. IN THIS CASE 3.800-A WAS CREATEED TO COR RECT AN ILLEGAL SENTENCE.I DON'T THINK IT SHOULD MATTER IN THAT REALM WHETHEROR NOT THE OR ALAN THE - - THE ORAL, AND THE WRITTEN ARE DIFFERENT, BECAUSE IN THIS CASE THE DEFENDANT WOULD HAVE GOTTEN AN ILLEGAL SENTENCE, SO IN THIS CASE THERE CANNOT BE A DOUBLE JEOPARDY VIOLATION. HE KN EW HE IS IN JAIL SERVE A GO LIFE SENTENCE WITH A TEN-YEAR MINIMUM MANDATORY WITH A W RITTEN SENTENCE THAT IS ILLEGAL.

JUSTICE: SO IF I UNDERSTAND YOUR POSITIONTHAT IF A SENTENCE IS R E NDER EDAND IF IT IS FOR "X" NUMBER OF YEARS AND THAT HAP PENS TO BE BELOW WHAT OTHERWISEWOULD BE REQUI RED THAT, THERE IS NO DOUBLE JEOPARDY IMPLICATION, IF THAT SENTENCE IS LATER ENHA NCED OR INCREA SED, FIVE OR TEN YEARS DOWN THE RO AD.

YONL , I THINK THAT IS ONLY IN A SITUATION WHERE THERE IS A DISCREPANCY. I MEAN , UNDER THE 10-20-LIFE , I THINK IT IS CLEAR IT HASTO BE IMPOSED , SO I WOULD SAY THERE WOULD BE NO DOUBLE JEOPARDY BECAUSE THE DEFENDANT WAS PUT ON NOTICE THAT HE WAS GO ING TO BE .

JUSTICE: DOES THE JURISPRUDENCE OF THIS COURT SUORT THAT ANALYSIS, DO YOU THINK?

I THINK THAT IT HASN'T BEEN EAST BOUND EXPLORED YESTERDAY YET -- I THINK THAT IT HASN'T BEEN EX PLORED YET. I THINK THAT WE HAVE ASHLEY AND ASHLEY HASN'T BEEN INTERPRETED.THAT ASHLEY IS UN IQUE TO THAT SITUATION.

JUSTICE: HOW ABOUT IN THE ABSTRACT OF THAT SITUATION. A SENTENCE IS IMPOSED AND IT IS BELOW WHAT MAY HAVE BEEN THE LAW AT THE TIME. WHAT IS OUR JURISPRUDENCE ALONG THOSE LI NES, I F SOMEONE LATER COMES IN AND INCREASES THAT, DOES THAT INDICATE DOUBLE JEOPARDY O R DOES IT NOT , BECAUSE THAT SENTENCE, THAT IS ILLEGAL IN YOUR FRAME OF REFERENCE.

I THINK IT DEPENDS. IT IS HARD TO ANSWER SUCH A HYPOTHETICAL, WHE N WE HAVE THIS CASE.WE HAVE A LOT OF DOCUMENTS THAT WERE PREPARED, AND WE K IND OF KNOW WHAT THE INTENTIONS WERE . I THINK SI MPLY PUTTING OUT THE JUDGE WAS REQUIRED TO DO IT AND FA ILED IT DO IT IS HARD, BECAUSE IN ALLEN IT WAS HARD. THERE WAS A MINIMUM MANDATORY IMPOSED. IT WAS THE WRONG ONE, SO I THINK IT REALLY DEPENDS UPON THE FACTS OF THE CASE N THE ABSTRACT, I DON'T KNOW IF YOU COULD BRING A DEFENDANT B ACK JUST TO SAY YOU KNOW WHAT? I SHOULD HAVE IMPOSED THIS MINIMUM , UNLESS , I MEAN, IF IT GOT OVERLOOKED FOR YEARS , I REALLY DON'T KNOW. IT REALLY DPTEDZ ON THEFACTS OF THE CASE , S O - - I T REALLY DEPENDS ON THE FACT S OF THE CASE , SO IN THIS CASE AGAIN, WE HAVE ARGU ED THAT IT IS NOT AN ILLEGAL SENTENCE. THE FOURTH CORRECTLY HE LD THAT THE ORAL VERSUS WRITTENIS NOT SOMETHING THAT CAN BE RAISED ON OUR 3.800-A IN THIS CASE , AND IF THERE ARE NO FURTHER QUESTIONS, THANK YOU.

CHIEF JUSTICE: THANK YOU VERY MUCH. ALL RIGHT.THE COURT WILL T AKE ITS MORNING RECESS OF 15 MINUTES.

MARSHAL: PLEASE RISE.