Hopping v. State, 708 So. 2d 263 (Fla. 1998). · Go Syfert
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Hopping v. State, 708 So. 2d 263 (Fla. 1998). Cases Citing This Book View Copy Cite
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cited 5× by 4 distinct cases, 1999–2014 · 2 courts · …where it can be determined without an evidentiary hearing that a sentence has been unconstitutionally enhanced in violation of the double jeopardy clause, the sentence is illegal and can be reached at any time under rule 3.800. at p. 265 ✓
64 citation events (36 in the last 25 years) across 2 distinct courts.
Strongest positive: Higgins v. State (fladistctapp, 1999-05-19)
Treatment trajectory · 1998 → 2026 · click a year to view as-of
1998 2012 2026
Top citers, strongest first. 32 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) Higgins v. State
Fla. Dist. Ct. App. · 1999 · quote attribution · 1 verbatim quote · confidence high
our holding today does no violence to the rationale in davis
discussed Cited as authority (rule) Marcus Roland Maye v. State of Florida (2×)
Fla. · 2026 · confidence medium
“By comparison, -9- we have held that a sentence that has been unconstitutionally enhanced in violation of the double jeopardy clause is illegal and, therefore, may be corrected under rule 3.800(a).” Id. at 992 (citing Hopping v. State, 708 So. 2d 263, 265 (Fla. 1998)).
discussed Cited as authority (rule) Marcus Roland Maye v. State of Florida (2×)
Fla. · 2026 · confidence medium
“By comparison, -9- we have held that a sentence that has been unconstitutionally enhanced in violation of the double jeopardy clause is illegal and, therefore, may be corrected under rule 3.800(a).” Id. at 992 (citing Hopping v. State, 708 So. 2d 263, 265 (Fla. 1998)).
discussed Cited as authority (rule) Thomas Dexter Lewis v. State of Florida
Fla. Dist. Ct. App. · 2025 · confidence medium
In other words, a defendant “entitled to challenge [a] technical sentencing error on direct appeal” may “not do so in a rule 3.800(a) motion” unless the error is “one involving ‘a court’s patent lack of authority or jurisdiction, a violation of the sentencing maximums provided by the Legislature, or a violation of some other fundamental right resulting in a person’s wrongful imprisonment’” such as “a sentence that has been unconstitutionally enhanced in violation of the double jeopardy clause.” Id. at 991-92 (quoting Wright, 911 So. 2d at 84 ) (citing Hopping v. State, …
discussed Cited as authority (rule) Ivory Lee Robinson v. State of Florida
Fla. Dist. Ct. App. · 2017 · confidence medium
Further, “where it can be determined without an evidentiary hearing that a sentence has been unconstitutionally enhanced in violation of the double jeopardy clause, the sentence is illegal and can be declared so at any time under rule 3.800.” Hopping v. State, 708 So.2d 263, 265 (Fla. 1998).
cited Cited as authority (rule) Jose Martinez v. State of Florida
Fla. · 2017 · confidence medium
Hopping v. State, 708 So.2d 263, 265 (Fla. 1998).
cited Cited as authority (rule) Peacock v. State
Fla. Dist. Ct. App. · 2015 · confidence medium
Hopping v. State, 708 So.2d 263, 265 (Fla.1998).
discussed Cited as authority (rule) Wright v. State
Fla. · 2005 · confidence medium
Mack, 823 So.2d at 751 (holding that when a defendant not initially sentenced as a habitual offender is given habitual offender status upon resentencing, and the error is apparent on the face of the record, the sentence is illegal and subject to a rule 3.800(a) challenge); Bover v. State, 797 So.2d 1246, 1247 (Fla.2001) ("[W]here the requisite predicate felonies essential to qualify a defendant for habitualization do not exist as a matter of law and that error is apparent from the face of the record, rule 3.800(a) can be used to correct the resulting habitual offender sentence."); Carter, 786 …
cited Cited as authority (rule) Robinson v. State
Fla. Dist. Ct. App. · 2002 · confidence medium
P. 3.800(a)(1998); State v. Mancino, 714 So.2d 429, 432-33 (Fla.1998); Hopping v. State, 708 So.2d 263, 265 (Fla.1998). 2.
discussed Cited as authority (rule) Carter v. State
Fla. · 2001 · confidence medium
Thus, in Hopping v. State, 708 So.2d 263, 265 (Fla. 1998), we concluded that a sentence that was increased upon resentencing in violation of the Double Jeopardy Clause constituted an illegal sentence in that it exceeded "the maximum period set forth by law for a particular offense without regard to the guidelines." We held that "where it can be determined without an evidentiary hearing that a sentence has been unconstitutionally enhanced in violation of the double jeopardy clause, the sentence is illegal and can be reached at any time under rule 3.800." Id.
discussed Cited as authority (rule) Montanez v. State (2×) also: Cited "see"
Fla. Dist. Ct. App. · 1999 · confidence medium
The Florida Supreme Court has held that “where it can be determined without an evidentiary hearing that a sentence has been unconstitutionally enhanced in violation of the double jeopardy clause, the sentence is illegal and can be reached at any time under Rule 3.800.” Hopping v. State, 708 So.2d 263, 265 (Fla.1998).
discussed Cited as authority (rule) Wright v. State
Fla. Dist. Ct. App. · 1999 · confidence medium
Wright is able to timely raise this issue, despite that he was sentenced within the statutory maximum based upon the holding in Hopping v. State, 708 So.2d 263, 265 (Fla.1998): [W]e hold that where it can be determined without an evidentiary hearing that a sentence has been unconstitutionally enhanced in violation of the double jeopardy clause, the sentence is illegal and can be reached at any time under rule 3.800.
cited Cited as authority (rule) Freshman v. State
Fla. Dist. Ct. App. · 1999 · confidence medium
State v. Mancino, 714 So.2d 429, 433 (Fla.1998); Hopping v. State, 708 So.2d 263, 265 (Fla.1998).
discussed Cited as authority (rule) Jett v. State
Fla. Dist. Ct. App. · 1998 · confidence medium
His motion "is limited to those sentencing issues that can be resolved as a matter of law without an evidentiary determination." Hopping v. State, 708 So.2d 263, 265 (Fla.1998) (quoting State v. Callaway, 658 So.2d 983, 988 (Fla.1995)). "[A]n objection based on the ground of absence of jurisdiction over the subject matter must be considered and may be effectively raised at any time." 20 Am.Jur.2d Courts § 63 (1995).
cited Cited as authority (rule) Baker v. State
Fla. Dist. Ct. App. · 1998 · confidence medium
P. 3.800(a)(1998); State v. Mancino, 714 So.2d 429, 432-433 (Fla. June 11, 1998); Hopping v. State, 708 So.2d 263, 265 (Fla.1998). 2.
discussed Cited as authority (rule) State v. Mancino
Fla. · 1998 · confidence medium
In a similar vein, we recently held, in a case involving a different Hopping, that "where it can be determined without an evidentiary hearing that a sentence has been unconstitutionally enhanced in violation of *433 the double jeopardy clause, the sentence is illegal and can be reached at any time under rule 3.800." Hopping v. State, 708 So.2d 263, 265 (Fla.1998).
discussed Cited "see" Henry v. State
Fla. Dist. Ct. App. · 2006 · signal: see · confidence high
See Hopping v. State, 708 So.2d 263 (Fla.1998) (holding that a double jeopardy claim that a sentence has been unconstitutionally enhanced may be raised in a rule 3.800(a) motion when the double jeopardy violation can be determined from the face of the record).
cited Cited "see" Cerkella v. State
Fla. Dist. Ct. App. · 2005 · signal: see · confidence high
See Hopping v. State, 708 So.2d 263, 265 (Fla.1998).
cited Cited "see" Maybin v. State
Fla. Dist. Ct. App. · 2004 · signal: see · confidence high
See Hopping v. State, 708 So.2d 263 (Fla.1998).
cited Cited "see" Hood v. State
Fla. Dist. Ct. App. · 2003 · signal: see · confidence high
See Hopping v. State, 708 So.2d 263, 265 (Fla. 1998); Jackson v. State, 650 So.2d 1026, 1027-28 (Fla. 1st DCA 1995); Valdes v. State, 765 So.2d 774, 776 (Fla. 1st DCA 2000).
discussed Cited "see" Smith v. State
Fla. Dist. Ct. App. · 2003 · signal: see · confidence high
Weekly S18 , ___ So.2d ____, 2003 WL 60564 (Fla. Jan. 9, 2003); see also Trotter v. State, 825 So.2d 362 (Fla.2002) (holding that resentencing pursuant to Heggs is a de novo proceeding which must comport with all constitutional requirements); see *756 also Hopping v. State, 708 So.2d 263 (Fla.1998)(holding that a double jeopardy claim may be raised in a rule 3.800(a) motion when the double jeopardy violation can be determined from the face of the record).
discussed Cited "see" MacK v. State
Fla. · 2002 · signal: see · confidence high
See Hopping v. State, 708 So.2d 263 (Fla.1998) (implicitly rejecting notion that only those sentences which exceed the statutory maximum can be challenged as illegal under rule 3.800(a)); State v. Mancino, 714 So.2d 429 (Fla.1998) (expressly rejecting same); see also Carter v. State, 786 So.2d 1173 (Fla.2001) (tracking the evolution of this Court's definition of an *749 illegal sentence and recognizing the Court's clarification of this definition by receding from Davis ).
cited Cited "see" Overstreet v. State
Fla. Dist. Ct. App. · 2002 · signal: see · confidence high
See Hopping v. State, 708 So.2d 263, 265 (Fla.1998).
cited Cited "see" Shaw v. State
Fla. Dist. Ct. App. · 2001 · signal: see · confidence high
See Hopping v. State, 708 So.2d 263, 265 (Fla.1998).
cited Cited "see" Ortiz v. State
Fla. Dist. Ct. App. · 2001 · signal: see · confidence high
See Hopping v. State, 708 So.2d 263 (Fla.1998).
cited Cited "see" Marusak v. State
Fla. Dist. Ct. App. · 2000 · signal: see · confidence high
See Hopping v. State, 708 So.2d 263 (Fla.1998); Thorp v. Smith, 64 Fla. 154 , 59 So. 193 (1912); Richardson v. Moore, 754 So.2d 64 (Fla. 3d DCA 2000).
discussed Cited "see" Richardson v. Moore
Fla. Dist. Ct. App. · 2000 · signal: see · confidence high
See Hopping v. State, 708 So.2d 263 (Fla.1998) (where sentence has been increased after imposition in violation of double jeopardy clause, the sentence is illegal and correctable under Florida Rule of Criminal Procedure 3.800).
cited Cited "see" Keel v. State
Fla. Dist. Ct. App. · 2000 · signal: see · confidence high
See Hopping v. State, 708 So.2d 263 (Fla.1998).
cited Cited "see" Fisher v. State
Fla. Dist. Ct. App. · 1999 · signal: see · confidence high
See Hopping v. State, 708 So.2d 263 (Fla.1998).
cited Cited "see" Spencer v. State
Fla. Dist. Ct. App. · 1999 · signal: see · confidence high
See Hopping v. State, 708 So.2d 263, 265 (Fla.1998); House v. State, 696 So.2d 515 (Fla. 4th DCA 1997).
discussed Cited "see" Shepherd v. State
Fla. Dist. Ct. App. · 1999 · signal: see · confidence high
See Hopping v. State, 708 So.2d 263 (Fla.1998); State v. Callaway, 658 So.2d 983 (Fla.1995), receded from on other grounds, Dixon v. State, 730 So.2d 265 (Fla.1999); Salazar v. State, 675 So.2d 654 (Fla. 3d DCA 1996); Wiley v. State, 604 So.2d 6 (Fla. 1st DCA 1992).
discussed Cited "see" Vanderblomen v. State
Fla. Dist. Ct. App. · 1998 · signal: see · confidence high
See Williamson v. Dugger, 651 So.2d 84 (Fla.1994), cert. denied, 516 U.S. 850 , 116 S.Ct. 146 , 133 L.Ed.2d 91 (1995). [4] We note that the Court in Hopping v. State, 708 So.2d 263, 264 (Fla.1998), also recently held that "where it can be determined without an evidentiary hearing that a sentence has been unconstitutionally enhanced in violation of the double jeopardy clause, the sentence is illegal" and therefore can be remedied at any time by motion filed pursuant rule 3.800(a). [5] We note that the Court in Davis appeared to take a different view than that expressed in Mancino when it held t…
Retrieving the full opinion text from the archive…
Darin S. HOPPING, Petitioner,
v.
STATE of Florida, Respondent.
89515.
Supreme Court of Florida.
Feb 19, 1998.
708 So. 2d 263
1998 WL 65389
Per Curiam.
Cited by 43 opinions  |  Published

[*264] Darin S. Hopping, Bonifay, Petitioner, pro se.

Robert A. Butterworth, Attorney General; James W. Rogers, Bureau Chief, Criminal Appeals; and Sonya Roebuck Horbelt, Assistant Attorney General, Tallahassee, for Respondent.

PER CURIAM.

We have for review a decision addressing the following question certified to be of great public importance:

WHETHER A SENTENCE WHICH VIOLATES DOUBLE JEOPARDY PRINCIPLES ACCORDING TO TROUPE v. ROWE, 283 So.2d 857 (Fla.1973), IS AN ILLEGAL SENTENCE COGNIZABLE UNDER RULE 3.800(a), FLORIDA RULES OF CRIMINAL PROCEDURE?

Hopping v. State, 674 So.2d 905, 906 (Fla. 1st DCA 1996). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. We answer in the affirmative and quash Hopping.

Darin Hopping pled guilty to a third-degree felony and was sentenced to a term of thirty months' incarceration to be followed by eighteen months' probation. His probation was revoked in November 1991, and he was resentenced to thirty-six months' incarceration with thirty months and two days' credit for time served. Hopping mistakenly thought that his new sentence equaled sixty-six months,[1] thereby exceeding the sixty-month maximum for third-degree felonies.[2] He requested a sentence correction by filing a motion under Florida Rule of Criminal Procedure 3.800(a), which states:

(a) Correction. A court may at any time correct an illegal sentence imposed by it or an incorrect calculation made by it in a sentencing guideline scoresheet.

The court responded with an order that had the practical import of doubling Hopping's original sentence:

ORDER CORRECTING AND MODIFYING JUDGMENT AND SENTENCE
This cause came on to be heard upon the Motion For Correction Of Sentence, filed by the Defendant, on or about January 28, 1992, requesting that his sentence be reduced to a maximum of five years with credit for time already served. The Court file reflects that a sentence was imposed upon the Defendant for a third-degree felony, the maximum term for which is five years. Accordingly, it is ORDERED AND ADJUDGED that the Judgment and Sentence entered in this cause on or about November 21, 1991, is hereby corrected and modified as follows:
1. The sentence imposed originally is vacated and in lieu thereof a sentence of sixty (60) months is imposed.

Hopping filed a second rule 3.800 motion, seeking to correct the doubling, which was denied. The First District Court of Appeal affirmed, but certified the foregoing question regarding the availability of a rule 3.800 motion in the present context:

Citing the narrow definition of an illegal sentence in Davis v. State, 661 So.2d 1193 (Fla.1995) ("an illegal sentence is one that exceeds the maximum period set forth by[*265] law for a particular offense without regard to the guidelines"), the State explained in its response that while the resentencing violated double jeopardy,[[3]] it did not result in an illegal sentence cognizable under rule 3.800. The state further asserted that appellant's remedies were either a direct appeal of the 1992 order which resulted in resentencing, or a timely 3.850 motion. Our records indicate that appellant's direct appeal following the 1992 resentencing was dismissed, and the two year bar for filing a 3.850 motion now applies. We affirm based on Davis, but because of the nature of the issue, certify a question of great public importance.

Hopping, 674 So.2d at 905.

Hopping argues that because the trial court can determine as a matter of law that his sentence has been unconstitutionally enhanced in violation of the double jeopardy clause, the matter is cognizable under rule 3.800. We agree.

In Davis v. State, 661 So.2d 1193 (Fla. 1995), we stated that

[A]n illegal sentence is one that exceeds the maximum period set forth by law for a particular offense without regard to the guidelines.

Id. at 1196. We reaffirmed Davis in State v. Callaway, 658 So.2d 983 (Fla.1995), and explained:

[A]n illegal sentence is one that exceeds the maximum period set forth by law for a particular offense without regard to the guidelines. A rule 3.800 motion can be filed at any time, even decades after a sentence has been imposed, and as such, its subject matter is limited to those sentencing issues that can be resolved as a matter of law without an evidentiary determination.

Callaway, 658 So.2d at 988 (citations omitted)(emphasis added). In the instant case, it can be determined "as a matter of law without an evidentiary [hearing]" that Hopping's sentence was increased upon resentencing in violation of the double jeopardy clause. Thus, as Judge Benton concisely reasoned, the sentence should not be unreachable under a rule expressly intended to correct illegal sentences:

The court today decides that appellant's claim that his sentence was unconstitutionally lengthened, after he had begun serving it cannot be considered under a rule that provides: "A court may at any time correct an illegal sentence imposed by it...." The opinion in Davis v. State, 661 So.2d 1193 (Fla.1995), should not, in my opinion, be read so narrowly. A sentence that has been unconstitutionally enhanced is "an illegal sentence ... [in] that [it] exceeds the maximum period set forth by law for a particular offense without regard to the guidelines."

Hopping v. State, 674 So.2d 905, 906 (Fla. 1st DCA 1996)(Benton, J., dissenting) (citations omitted). We agree with Judge Benton's reasoning and conclude that our holding today does no violence to the rationale of Davis.

Based on the foregoing, we hold that where it can be determined without an evidentiary hearing that a sentence has been unconstitutionally enhanced in violation of the double jeopardy clause, the sentence is illegal and can be reached at any time under rule 3.800. Accordingly, we answer the certified question in the affirmative and quash the decision below.

It is so ordered.

KOGAN, C.J., OVERTON, SHAW, HARDING, WELLS and ANSTEAD, JJ., and GRIMES, Senior Justice, concur.

1 Hopping was resentenced to an additional six months' incarceration.
2 Section 775.082(3)(d), Florida Statutes (1995) provides that "A person who has been convicted... may be punished ... [f]or a felony of the third degree, by a term of imprisonment not exceeding 5 years."
3 Troupe v. Rowe, 283 So.2d 857 (Fla. 1973) (prohibiting increasing a legal sentence once it has commenced on double jeopardy grounds).