Lopezv.State

Third District Court of Appeal State of FloridaJul 10, 2019
No. 3D18-464 (Fla. Dist. Ct. App. Jul. 10, 2019)

No. 3D18-464

07-10-2019

Jonathan Daniel Lopez, Appellant, v. The State of Florida, Appellee.

Jonathan Daniel Lopez, in proper person. Ashley Moody, Attorney General, and Natalia Costea, Assistant Attorney General, for appellee.


Not final until disposition of timely filed motion for rehearing. Lower Tribunal No. 07-5641 An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Victoria del Pino, Judge. Jonathan Daniel Lopez, in proper person. Ashley Moody, Attorney General, and Natalia Costea, Assistant Attorney General, for appellee. Before HENDON, MILLER, and LOBREE, JJ. HENDON, J.

Jonathan Daniel Lopez appeals from the trial court's denial of his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(b). We affirm.

In case number F07-5641, Lopez was charged with, among other things, custody, possession or control of a concealed weapon (a pellet gun), a second degree felony. The defendant accepted a plea of two years' state prison, and has fully served his sentence. He did not file a direct appeal. Lopez argues that he was improperly charged with possession of a Firearm/Weapon/Ammunition by a convicted felon, rather than with possession of a pellet gun. As a result, he argues, his plea was involuntary. He seeks to revise the original charge or to vacate the conviction.

Lopez cannot address a defective 2007 information or plea via 3.800 because his sentence is not illegal. The record shows, and he did not dispute, that one of the offenses he pleaded to was possession of a Firearm/Weapon/Ammunition by a convicted felon. He did not challenge the validity of the plea and conviction by direct appeal, and a motion via rule 3.850 is now time-barred. Finally, the record indicates that Lopez completed his mitigated sentence in 2008. Thus, his challenge to the validity of the charging document and conviction has been waived. Where a defendant has already served his sentence and he has reaped the benefit (if any) of an illegal sentence, he is estopped from challenging the sentence, especially in the context of a negotiated plea. State v. Ortiz, 79 So. 3d 177, 178 (Fla. 3d DCA 2012).

Affirmed.