Petition — Sotto v. Wainwright

IN THE

Supreme Court uf the United States

OCTOBER TERM, 1979

9-751

ANIBAL SOTTO and JOAQUIN A. AMOR,

Petitioners,

versus

LOUIE L. WAINWRIGHT,

Secretary, Department of Offender Rehabilitation,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

GEOFFREY C. FLECK, ESQ.

KOGEN AND KOGAN, P.A.

Attorneys for Petitioners

500 Security Trust Building

700 Brickell Avenue

Miami, Florida 33131

(305) 371-2661

SCOFIELDS' QUALITY PRINTERS, P. O. BOX 53096, N. O., LA. 70153 - 504/822-1611

INDEX

Page

COPY MIO Sic Sie s Hedin Bias Bais aie vs eae 2

pe gh SEY Rk Sits Cae 2

QUESTIONS PRESENTED FOR

POMS iis wae Cha CRON 0s Pe oP b ew OOS. oe eceee 2

CONSTITUTIONAL AND STATUTORY

fe Ou 8 De Os 2 8 Er 3

Sa ATROE GOP ETI CAGE Sec ce cece ceccatecce 4

REASONS FOR GRANTING THE WRIT ....... 11

CI ae eUUnGs cn esececaccaccessc 18

Ce UCPC oie icc cccccccccce 19

APPENDIX A — Opinion of the Fifth Circuit

Court of Appeals in Sotto v. Wainwright and

Amor v. Wainwright, 601 F.2d 184 (5th Cir.

OS Re ie he es eo ee la

APPENDIX B — Judgment of Reversal ......... 18a

-APPENDIX C — Order Denying Petition for

Rehearing .......... ee nT he an 19a

TABLE OF CITATIONS .

Boling v. National Zinc Co., 435 F.Supp. 18 (N.D.

wih ie ed cd 12

Dodge v. Bennett, 335 F.2d 657 (1st Cir. 1964) ..... 17

Fallen v. United States, 378 U.S. 139 (1964) ........ 15

Griffin v. People of the State of Illinois, 351 U.S. 12

DN ah. er reas AMIE Vay ban 09 & 13

TABLE OF CITATIONS (Continued)

Leyoas v. United States, 371 F.2d 714 (9th Cir. , Page

WN) ov cnet indbeaselans (sibs te 17

NAACP v. Button, 371 U.S. 415 (1963) ........... 12

Rinaldi v. Yeager, 384 U.S. 305 (1966) .........4- 13

Silver v. Cormier, 529 F.2d 161 (10th Cir. 1976) ..... 12

United States v. Janiec, 505 F.2d 983 (3rd Cir.

BFE ois ch ack hie 0 ce REAR oe ORS Se RES CORRE 17

United States v. Mendoza, 565 F.2d 1285 (5th Cir

BOGE Gi enndeses beens ESOP EE Oe ee Oe Peer eS 14

United States v. Ourso, 417 F.Supp. 113 (E.D. La

WO oth sew gaa udch oss SSSR KS a weae Reeet 17

United States v. Polizzi, 500 F.2d 856 (9th Cir

OR i ee. Si hl) ORR Eek Op Re OS DER e 17

United States v. Stollings, 516 F.2d 1287 (4th Cir

BOS eS 6 ac kp RRS CURES Vb aS RE Os REO 17

United States v. United States District Court, 509 F.2d

1352 (9th Cir. 1975) ......... RT CAR Need pias 17

OTHER AUTHORITIES

Federal Rules of Criminal Procedure,

PMR ides. ie gKiGA CERES S Cok As OE ee 15

We a vo Vs bea ee be ese coe cionees 15,16,17

Florida Rule of Criminal Procedure 3.020 ..........00. 15

United States Constitution, 3

PE NE is oi wicks s Sis bcs d ¢ -646 6 12,14,18

PAINE FAG Sian oak nace cc cteives 12,14,18

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1979

No.

ANIBAL SOTTO and JOAQUIN A. AMOR,

Petitioners,

versus

LOUIE L. WAINWRIGHT,

Secretary, Department of Offender Rehabilitation,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Petitioners, ANIBAL SOTTO and JOAQUIN A.

AMOR, respectfully pray that a writ of certiorari issue

to review the judgment and opinion of the United

States Court of Appeals for the Fifth Circuit rendered

on the 28th day of September, 1979.

2

OPINION BELOW

Proce full opinion of the United States Court of

ppeals for the Fifth Circuit is attached hereto as

Appendix A. The re ini

ported opinion a

184 (Sth Cir. 1979). weeahan hide

JURISDICTION

Jurisdiction of this Court is invoked under 28 U.S.C

Section 1254(1), to review the judgment and ne Sal of

the United States Court of Appeals for the Fifth Cir-

cuit. That judgment and opinion was entered on

August 22,1979. (App. A, B). A timely Petition for Re-

hearing and Suggestion for Rehearing En Banc was de-

nie on September 28, 1979. (App. C). The mandate of

a —" stayed until November 11, 1979, or alter-

ivela. sammie i ie é Ke

es. ly re of a timely filed petition

QUESTIONS PRESENTED FOR REVIEW

1. WHETHER IT IS FUNDAMENTALLY UN-

FAIR TO DENY A DESERVING STATE

PRISONER THE BENEFIT OF AN ORDER

GRANTING MITIGATION OF HIS SEN-

TENCE BECAUSE THE ORDER WAS NOT

ENTERED WITHIN THE TIME PRESCRIBED

BY A RULE OF CRIMINAL PROCEDURE

_ WHERE THAT DELAY IN RULING WAS EN-

TIRELY WITHOUT THE F

A

PRISONER. ULT OF THE

3

2. WHETHER A STATE PRISONER IS DENIED

HIS FUNDAMENTAL CONSTITUTIONAL

RIGHT TO ACCESS TO THE COURTS

WHERE, DUE SOLELY TO THE COURT'S IN-

ABILITY TO TIMELY RULE ON HIS TIMELY

FILED MOTION TO MITIGATE, HE IS PRE-

CLUDED FROM RECEIVING ANY JUDICIAL

REVIEW OF HIS MOTION AT ALL.

WHETHER THE DISPARATE TREATMENT

OF A PRISONER WHO IS FORTUNATE

ENOUGH TO BE ABLE TO OBTAIN A

PROMPT COURT RULING ON HIS MOTION

TO MITIGATE AND A PRISONER WHO IS

DENIED A TIMELY RULING DUE TO THE

COURT'S INCAPACITY, ABSENCE OR PRE-

OCCUPATION, DENIES TO THE LATTER

HIS CONSTITUTIONAL PROMISE OF

EQUAL PROTECTION OF THE LAW.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Amendment V

No person shall . . . be deprived of life, lib-

erty, or property, without due process of law.

Amendment XIV

No State shall make or enforce any law which

shall abridge the privileges or immunities of

citizens of the United States; nor shall any

fd

State deprive any person of life, liberty, or

property, without due process of law; nor

deny to any person within its jurisdiction the

equal protection of the laws.

Florida Rule of Criminal

Procedure 3.800(b)

A court may reduce a legal sentence imposed

by it within sixty days after such imposition,

or within sixty days after receipt by the court

of a mandate issued by the appellate court

upon affirmance of the judgment and/or sen-

tence upon an original appeal, or within sixty

days after receipt by the court of a certified»

copy of an order of the appellate court dis-

missing an original appeal from the judgment

and/or sentence, or, if further appellate re-

view is sought in a higher court or in succes-

sively higher courts, then within sixty days

after the highest state or federal court to

which a timely appeal has been taken under

authority of law, or inwhich a petition for cer-

tiorari has been timely filed under authority of

law, has entered an order of affirmance or an

order dismissing the appeal and/or denying

certiorari.

STATEMENT OF THE CASE

The petitioners, ANIBAL SOTTO and JOAQUIN A.

AMOR, were tried for various lottery offenses before

the Honorable George E. Orr at atime when Judge Orr

5

was sitting in the Criminal Division of the Circuit

Court of the Eleventh Judicial Circuit, in and for Dade

County, Florida. The petitioners were adjudged guilty

and each sentenced to a prison sentence of three years

plus fines. [App. A, p. 2a].

Pursuant to the petitioners’ convictions, an appeal

was taken to the District Court of Appeal, Third Dis-

trict, and a mandate affirming the judgment and sen-

tence was returned on February 12, 1976. Sotto v. State,

325 So.2d 414 (Fla. 3d DCA 1976). Thereafter, the peti-

tioners petitioned for certiorari in the Florida Supreme

Court, which petition was denied on July 30, 1976. Sotto

», State, 336 So.2d 1184 (Fla. 1976).

A motion to mitigate was timely filed on behalf of the

petitioners on September 23, 1976, and a hearing set

for September 29, 1976. [App. A, p. 3a].

At the time of the hearing, Judge Orr had been trans-

ferred from the Criminal Division of the Circuit Court

to the General Jurisdiction Division and the Honor-

able Paul Baker had been reassigned from the General

Jurisdiction Division to the Criminal Division and had

assumed Judge Orr’s caseload.

At the hearing, a question arose as to whether the

motion to mitigate should be heard before Judge Baker

or referred to Judge Orr. Thereupon, a recess was

taken and Judge Baker communicated telephonically

&

EE EEE ae

6

with Chief Judge Grady L. Crawford, who directed that

Judge Baker review the case file, testimony, if avail-

able, and the pre-sentence investigation [App. A, p. 4a].

The case file and pre-sentence investigation were

ordered by the court and the matter reset for

November 22, 1976. On that date, the pre-sentence in-

vestigation was not before the court and the court

ordered counsel to present a transcript of the trial for

review before considering the motion to mitigate. The

court reset the matter for November 24, 1976. [App. A,

p. 4a].

On November 24, 1976, the pre-sentence investiga-

tion was still not before the court and the transcript of

the trial had not yet been delivered. The court reset the

matter for December 7, 1976. On approximately

November 29, 1976, the transcript of the trial was de-

livered to the court, which transcript consisted of 627

pages including exhibits. The court reviewed that tran-

script.

On December 7, 1976, the pre-sentence investiga-

tion was delivered to the court by Mr. Phillip Ware, the

District Supervisor of the Department of Rehabilita-

tive Services (Parole and Probation Department).

On the very same day the court received, for the first

time, the pre-sentence investigation that was required

to be reviewed in order to rule on the petitioners’

motion to mitigate, the court entered its order grant-

ing the petitioners’ motions to mitigate. On the basis of

7

the recommendations expressed in the pre-sentence

investigation report, the court ordered the vacation of

petitioner Sotto’s prison sentence, placed him on pro-

bation for five years, and ordered the payment of a five

thousand dollar fine. As to petitioner Amor, the court

vacated the three year prison sentence imposed and

ordered him to serve one year in the County Jail. [App.

A, p. Sal.

In its order, the court expressly found that:

For the above and foregoing reasons, this

Court was unable to rule within the sixty (60)

days provided for in Rule 3.800, Rules of

Criminal Procedure. This Court is not un-

mindful of the provisions of State v. Evans, 225

So.2d 548; however, the circumstances in the

instant case differ inasmuch as the pre-sen-

tence investigation had been misplaced and

the trial transcript had to be obtained from the

District Court of Appeal and then reviewed

before the Court could make an intelligent

ruling.

The State argues that regardless of the delay

or what may have caused it the Court lost

jurisdiction to consider the motion to miti-

1 Inasmuch as the court vacated the petitioners’ original sen-

tences rather than reducing their sentences, petitioners concede

that the court’s order is erroneous and that this cause should be

remanded for the entry of an appropriately worded order.

Fla.R.Crim.P. 3.800(b).

8

gate on December 7, 1976. This Court reason-

ed that the defendants should not be preju-

diced because of a delay over which they had

no control. It was not the fault of the defend-

ants that the pre-sentence investigation was

misplaced nor was it their fault that the Court

had to consider a lengthy transcript. Prior to

ruling, the Court considered these exception-

al circumstances and proceeded to hear argu-

ment on the motion to mitigate.

[App. A, p. 5a, FN. 2].

From the trial court’s order granting the petitioners’

motion, the State petitioned the District Court of

Appeal, Third District, for a writ of certiorari. The Dis-

trict Court, on July 26, 1977, granted the writ and

vacated the trial court’s order granting mitigation.

wy

The Court held:

The law is clear that a trial court pursuant to

Fla.R.Crim.P. 3.800(b) may reduce a legal sen-

tence at any time within sixty days after the

imposition of sentence or within sixty days

after the highest state or federal court, to

9

elapsed or to mitigate a legal sentence by

vacating it and placing the defendant on pro-

bation. Moss v. State, 330 So.2d 742 (Fla. ist

DCA 1976); State v. Rodriguez, 326 So.2d 245

(Fla. 3d DCA 1976); State v. Brown, 308 So.2d

655 (Fla. 1st DCA 1975); Smith v. State, 289

So.2d 410 (Fla. 4th DCA 1972); Ware v. State,

231 So.2d 872 (Fla. 3d DCA 1970); Jefferson v.

State, 320 So.2d 827 (Fla. 4th DCA 1975); State

v. Evans, 225 So.2d 548 (Fla. 34 DCA 1969);

cert. den. 229 So.2d 261 (Fla. 1969); cert. den.

397 U.S. 1053 (1970).

The orders under review are quashed be-

cause the trial court lacked jurisdiction to

enter them. The sixty day time periods under

Fla.R.Crim.P. 3.800(b) had elapsed at the time

the mitigation orders were entered. Since this

is a jurisdictional matter, we must of necessity

reject the defendants’ contentions which seek

to excuse the trial court’s delay in mitigating

the sentences.

[App. A, p. 6al.

which a timely appeal or petition for writ of

certiorari has been taken, has entered an order

of affirmance, an order dismissing the appeal

or an order denying certiorari. A trial court

lacks the jurisdiction to mitigate a legal sen-

tence after the above sixty day periods have

The petitioners’ petition for rehearing was denied on

September 8, 1977. [App. A, p. 6a].

The petitioners then petitioned the Florida Supreme

Court for a Writ of Certiorari and reinstatement of the

order granting mitigation due to the fact that the

10

court's delay in ruling on the Motion to Mitigate was

entirely unavoidable and in no way attributable to

either petitioner.

The petitioners asserted that in finding that the peti-

tioners were bound by the sixty day limitation of Rule

3.800(b), despite the fact that any delay past the sixty

day limit was conclusively found by the trial court not

to be the fault of the petitioners, the District Court had

misapplied the principle of law established in each of

the cases upon which it had relied.

The Florida Supreme Court denied the petition for

lack of certiorari jurisdiction on May 8, 1978, with

three of seven Justices dissenting. Sotto v. State, 359

So.2d 1219 (Fla. 1978).

Thereafter, on August 16, 1978, the petitioners

sought habeas corpus relief in the United States Dis-

trict Court for the Southern District of Florida. [App.

A, p. 6a].

The United States Magistrate filed a report on

November 3, 1978, which recommended that the Dis-

trict Court allow the state trial court a reasonable time

within which to enter its order upon the petitioners’

motions for reduction of sentence or the writ should

issue. On November 16, 1978, the District Court

entered its order approving the report of the United

States Magistrate and granting the habeas corpus re-

lief sought. [App. A, p. 7a].

11

The respondent then appealed to the United States

Court of Appeals for the Fifth Circuit. On August 22,

1979, the court reversed the grant of habeas corpus re-

lief. [App. A]. A timely Petition for Rehearing and Sug-

gestion for Rehearing En Banc was filed by petition-

ers. This petition was denied on September 28, 1979.

[App. C]. Due to the important questions of con-

stitutional law herein raised which have not previous-

ly been resolved by this Court, this petition for writ of

certiorari is presented pursuant to Rule 19(1)(b) of this

Court.

REASONS FOR GRANTING THE WRIT

The Holding Below That The Petitioners

Were Not Denied Due Process Of Law,

Fundamental Fairness, And Equal Protection

Of The Law, When Through No Fault Of

Their Own They Were Denied Access To The

Courts For The Purpose Of Obtaining Miti-

gation Of Their Sentences, Conflicts With

Decisions Of The United States Court of

Appeals And Presents Constitutional Ques-

tions Of Vital And Continuing Importance

To The Administration Of The Criminal

Justice System.

Florida’s rule of criminal procedure providing for the

mitigation of previously imposed sentences, only if

ruled upon within a prescribed time, operates so un-

fairly, unequally, and discriminately that it is un-

12

constitutional. Identically deserving defendants filing

identical timely motions to mitigate at precisely the

same time with the same judge may receive drastically

different treatment. The rule operates in such a way

that one defendant, who is fortunate enough to obtain

a ruling by the court within the sixty day time limit pre-

scribed by the rule will obtain mitigation, while an-

other, who for any reason beyond his control cannot

obtain a timely ruling on his motion, will find the door

to the court barred. Such a result is not only uncon-

scionably unjust, but constitutionally intolerable.

Access to all Courts, state and federal, is a Con-

stitutional right guaranteed by the Due Process Clause

of the Fourteenth Amendment, and by the Fifth

Amendment. Silver 0. Cormier, 529 F.2d 161 (10th Cir.

1976); Boling v. National Zinc Co., 435 F.Supp. 18 (N.D.

Okl. 1976). The right of access to the courts is a funda-

mental right implicit in the concept of ordered liberty.

e.g., NAACP v. Button, 371 U.S. 415 (1963).

The petitioners here have been completely denied

access to the courts. They have been deprived of a fun-

damental constitutional right. They have also been

treated unequally and unfairly.

The petitioners have never claimed that they have a

federal constitutional right to either have their sen-

tences reduced or to have their motions to mitigate

ruled upon. The petitioners do claim, however, that if

the state does promulgate a rule providing for access to

13

the courts for the purpose of seeking mitigation, that

that access must be provided equally for all and admin-

istered in compliance with the due process require-

ment of fundamental fairness if that rule is to pass con-

stitutional scrutiny. Such is clearly the established law.

Once a state establishes an avenue of relief, that

avenue “must be kept free of unreasoned distinc-

tions”. Rinaldi v. Yeager, 384 U.S. 305, 310 (1966). Pre-

cisely the same rule has been established with regard to

state provisions for appellate review by convicted

defendants:

While “a State is not required by the Federal

Constitution to provide appellate courts or a

right to appellate review at all,”. . .“that is not

to say that a State that does grant appellate re-

view can do so in a way that discriminates

against some convicted defendants .. .”

Griffin v. People of the State of Illinois, 351 U.S. 12,

18 (1956).

The petitioners here, through no fault of their own,

have suffered a severe penalty because of the inci-

dental effect of a rotational system whereby civil and

criminal judges are periodically exchanged, thereby

rendering the original trial judge unavailable to rule on

the motion, coupled with the replacement judge’s need

to read the trial transcript, and the innocent and un-

foreseeable misplacement of the petitioners’ pre-sen-

tence investigations, which were essential to an intel-

ligent and reasoned determination of this case. [App. A,

p. 3a-4a].

14

Because the delay of the trial court in ruling on the

petitioners’ motions to mitigate was due solely to un-

avoidable circumstances over which the petitioners had

nocontrol, they should not have been denied a forum in

which to demonstrate their rehabilitation and obtain

reconsideration of their sentences, due to an absurd,

unfair, and unconstitutional construction of the rule.

Where, as here, one petitioner gains access to the

courts, and another petitioner does not, solely by virtue

of circumstances over which he has no control, then

the Federal Constitution is seriously offended. A peti-

tioner who finds the courtroom door so barred is at

least denied procedural due process, equal protection of

the law, and access to the courts, as guaranteed by the

Fifth and Fourteenth Amendments to the United

States Constitution.

The Federal courts have, in fact, consistently recog-

nized the infirmity that such a disparate accessibility to

the courts suffers. In United States v. Mendoza, 565 F.2d

1285 (Sth Cir. 1978), the court rejected a literal read-

ing of the federal mitigation rule and held:

when a Rule 35 motion is filed sufficiently

early in the 120 day period to provide a reason-

able opportunity for the courts to consider

and rule upon the motion within 120 days, the

failure or inability of the trial judge to act on

the motion within that period does not divest

_ the trial judge of jurisdiction. Jurisdiction is

15

retained for so long as the judge reasonably

needs time to consider and act upon the mo-

tion.

[565 F.2d at 1287].

The court rejected the express 120 day limitation im-

posed by Rule 35, Fed.R.Crim.P., as well as the Govern-

ment’s argument that the time prescribed by the rule

was jurisdictional, and stated:

The Rules are not, and were not intended to

be, a rigid code with an inflexible meaning ir-

respective of the circumstances. Fallen v. Unit-

ed States, 378 U.S. 139, 142 (1964).

The court relied on Federal Rule 2, which is substan-

tially the same as Fla.R.Crim.P. 3.020, which reads:

These rules are intended to provide for the

just determination of every criminal proceed-

ing. They shall be construed to secure

simplicity in procedure and fairness in admin-

istration.

Reasoning that Rule 35 represents an attempt to en-

sure that every defendant has sufficient time to submit

his motion and that every motion is fairly considered

and decided, the court concluded that it

“need not, indeed must not, slavish); follow

the literal language of the rule when that

16

language leads us through the looking glass to

an unjust and unreasonable result.”

* * *

Likewise we should not follow the literal read-

ing of Rule 35 ... when the consequences

would be so devastatingly and arbitrarily for-

tuitous.

[565 F.2d at 1289-1290].

As the court emphasized, a defendant might well be-

lieve himself to be in wonderland if, having timely filed

his motion, he must simply hope that the court will not

have temporarily misplaced the records of his case, or

be involved in a lengthy trial, or be ill, or on vacation, or

delayed by any of countless other legitimate causes, so

that his motion will simply fail by attrition, through no

fault of his or his counsel. Those defendants who are

fortunate enough to file their motions when the Court

is in a position to rule promptly will have their cause

heard; those less fortunate will find the door of the

Court barred. This can be neither fair nor just.

In conclusion, the court held that when, as in this

case, “delay flows from the incapacity, absence, or pre-

occupation of the trial judge, its consequences should

not be visited upon the defendant”. [565 F.2d at 1290].

The court went on to specify a point in time midway

in the time period allowed by the rule, by which a

defendant must file his motion in order to ensure a

17

jurisdictional extension beyond the period of the rule.

On rehearing en banc, the court rejected the cut off date

established by the panel opinion, and held that a motion

timely filed at any time during the period specified by

Rule 35 is sufficient to confer jurisdiction on the Dis-

trict Court to cons der and rule upon the motion after

expiration of the period.

The Fifth Circuit is not alone. Every other Circuit

Court which has examined Rule 35 under similar cir-

cumstances has concluded that when a motion is filed

within the time prescribed by the rule, jurisdiction ex-

tends beyond that time in order to allow the trial judge

a reasonable time to act on the motion. Dodge v. Bennett,

335 F.2d 657 (1st Cir. 1964); United States v. Janiec, 505

F.2d 983 (3rd Cir. 1974); United States v. Stollings, 516

F.2d 1287 (4th Cir. 1975); Leyoas v. United States, 371 F.2d

714 (9th Cir. 1967); United States v. United States District

Court, 509 F.2d 1352 (9th Cir. 1975); United States v. Poliz-

zi, 500 F.2d 856 (9th Cir. 1974); United States v. Ourso, 417

F.Supp. 113 (E.D. La. 1976).

The construction of Florida’s mitigation rule adopt-

ed by the appellate courts of Florida and left intact by

the panel decision of the Circuit court below, encour-

ages not only the injustice that resulted in this case, but

forces atrial court torule upon a timely filed motion for

mitigation within what may be an unreasonably short

time, out of deference to expediency rather than

reason. Because the trial court in this case refused to

base its ruling affecting the liberty of the petitioners in

18

ignorance, and sought instead to make a reasoned and

intelligent decision after review of the trial transcript

and pre-sentence investigations to which it had pre-

viously not had access, it could not rule on the peti-

tioners’ motions to mitigate within the prescribed

period. By visiting the penalty for that delay upon the

petitioners, the court below has endorsed a Con-

stitutionally impermissible result which denied the

petitioners procedural due process, equal protection of

the law, and access to the courts, as guaranteed by the

Fifth and Fourteenth Amendments to the United

States Constitution.

CONCLUSION

Since Florida provides for mitigation of sentences,

access to the courts for the purpose of seeking that re-

lief must be provided equally for all and administered in

such a way as to be fundamentally fair. Because Florida

neither grants access equally nor in a manner that is

less than absurdly unfair, the petitioners pray this

Court will issue its Writ of Certiorari.

Respectfully submitted,

KOGEN AND KOGAN, P.A.

Attorneys for Petitioners

500 Security Trust Building

700 Brickell Avenue

Miami, Florida 33131

GEOFFREY C. FLECK

19

CERTIFICATE OF SERVICE

| HEREBY CERTIFY that three true and correct

copies of the foregoing were this ____ day of Novem-

ber, 1979, mailed to the Office of the Attorney Gen-

eral, 401 N.W. Second Avenue, Room 820, Miami,

Florida, 33128.

GEOFFREY C. FLECK

4

la

APPENDIX “A”

Anibal SOTTO,

Petitioner-Appellee,

versus

Louie L. WAINWRIGHT,

Secretary, Department of Corrections,

Respondent-Appellant.

Joaquin A. AMOR,

Petitioner-Appellee,

versus

Louie L. WAINWRIGHT,

Secretary, Department of Corrections,

Respondent-Appellant.

No. 79-1003.

United States Court of Appeals,

Fifth Circuit.

Aug. 22, 1979.

Appeal from the United States District Court for the

Southern District of Florida.

2a

Before WISDOM, AINSWORTH and RONEY, Cir-

cuit Judges.

AINSWORTH, Circuit Judge:

In this habeas corpus action, we must decide the con-

stitutionality as applied of Florida’s Rule of Criminal

Procedure 3.800(b), which governs the reduction of

sentences by the state’s trial courts. The district court,

‘adopting the report of a United States magistrate, held

that strict application of the rule had denied petition-

ers “fundamental due process” and accordingly grant-

ed relief. However, we conclude that the rule’s applica-

tion in this case did not violate the Constitution and

therefore reverse.

I. Background

On March 25, 1975, in the Circuit Court (trial court)

for Dade County, Florida, petitioners Anibal Sotto and

Joaquin Amor were convicted of aiding or assisting in

conducting a lottery, possession of lottery tickets and

possession of lottery paraphernalia and sentenced to

three years in prison. After Florida’s Third District

Court of Appeal affirmed the convictions, Soto v. State,

325 So.2d 414 (Dist.Ct.App., 1976), Sotto and Amor

petitioned the Florida Supreme Court for writs of cer-

tiorari; the court denied the petition on July 30, 1976.

Sotto v. State, 336 So.2d 1184 (Fla., 1976).

Pursuant to Fla.R.Crim.P. 3.800(b), on September

23, 1976 petitioners filed in the trial court a motion to

3a

mitigate their sentences. Under the version of Rule

3.800(b) then in force,

A court may reduce a legal sentence im-

posed by it at the same term of court at which

it has been imposed, or if such term ends less

than sixty days after the imposition of the sen-

tence, then within sixty days after such impo-

sition, or within sixty days after receipt by the

court of a mandate issued by the appellate

court upon affirmance of the judgment and/or

sentence upon an original appeal, or within

sixty days after receipt by the court of a certi-

fied copy of an order of the appellate court dis-

missing an original appeal from the judgment

and/or sentence, or, if further appellate

review is sought in a higher court or in suc-

cessively higher courts, then within sixty days

after the highest state or federal court to

which a timely appeal has been taken under

authority of law, or in which a petition for cer-

tiorari has been timely filed under authority of

law, has entered an order of affirmance, or an

order dismissing the appeal and/or denying

certiorari.!

The court scheduled a hearing on the motion to reduce

sentences for September 29, 1976. Judge George Orr,

who had presided over petitioners’ trial, had since been

1 Rule 3.800(b) was amended, effective July 1, 1977, to provide

as follows:

A court may reduce a legal sentence imposed by it within sixty

days after such imposition, or within sixty days after receipt by the

4a

transferred to another division of the court, with Judge

Paul Baker assuming his caseload, and a question arose

at the hearing as to which judge should rule on the mo-

tion. The Chief Judge of the Dade County Circuit

Court determined that Judge Baker should handle the

matter and directed him to review the case file, trial

testimony and presentence investigation report. Judge

Baker ordered delivery of the case file and presen-

tence report and rescheduled the hearing for Novem-

ber 22, 1976. On that date, the presentence report had

still not been provided; the judge instructed counsel to

supply a trial transcript and postponed the hearing

until November 24. Neither the report nor the tran-

script was delivered by that date, however, so the judge

reset the hearing for December 7. After reviewing the

trial transcript and presentence investigation report,

the court conducted the hearing on December 7 and

granted petitioners’ motion to reduce sentence. Thus,

court of a mandate issued by the appellate court upon affirmance

of the judgment and/or sentence upon an original appeal, or

within sixty days after receipt by thecourt of acertified copy of an

order of the appellate court dismissing an original appeal from the

judgment and/or sentence, or, if further appellate review is sought

in a higher court or in successively higher courts, then within sixty

days after the highest state or federal court to which a timely

appeal has been taken under authority of law, or in which a peti-

tion for certiorari has been timely filed under authority of law, has

entered an order of affirmance or an order dismissing the appeal

and/or denying certiorari. be Soe

- This section of the rule shall not, however, be applicable to those

cases in which the death sentence is imposed or t cases where

the trial judge has imposed the minimum mandatory sentence or

has no sentencing discretion. The Committee Note explains that

“[t]his amendment provides a uniform time within which a

defendant may seek a reduction in sentence and excludes death.

and minimum mandatory sentences from its operation.”

5a

the court’s decision came long after the expiration of

sixty days from the denial of certiorari by the Florida

Supreme Court. The judge vacated Sotto’s three-year

prison sentence, placing him on five years’ probation

and ordering payment of a $5,000 fine, and also vacat-

ed Amor’s prison term, sentencing him to one year in

the County Jail and requiring payment of a $3,500

fine.2

The State of Florida, through its official custodian,

respondent Wainwright, petitioned Florida’s Third

District Court of Appeal for a writ of certiorari, con-

tending that under Rule 3.800(b) the trial court lacked

jurisdiction to rule on petitioners’ motion to reduce

sentence, because more than sixty days had passed

since the Florida Supreme Court's denial of certiorari

on direct review before the trial court entered its order

reducing the sentences of petitioners. The District

Court of Appeal granted the writ and agreed that Rule

2 The trial judge was “not unmindful” of Florida state court

decisions holding that a court loses jurisdiction if it fails to ruleon

a motion to mitigate within the sixty-day period. However, he

asserted that “the circumstances in the instant case differ inas-

much as the pre-sentence investigation had been misplaced and

the trial transcript had to be obtained from the District Court of

Appeal and then reviewed before the Court could make an intelli-

gent ruling. The state argues that regardless of the delay or what

may have caused it the Court lost jurisdiction to consider the mo-

tion to mitigate on December 7, 1976. This Court reasoned that

the defendants should not be prejudiced because of a delay over

which they had no control. It was not the fault of the defendants

that the pre-sentence investigation was misplaced nor was it their

fault that the Court had to consider a lengthy transcript. Prior to

ruling, the Court considered these exceptional circumstances and

proceeded to hear argument on the motion to mitigate.”

6a

3.800(b) allowed a trial court to reduce a legal sentence

only “within sixty days after the imposition of sen-

tence or within sixty days after the highest state or fed-

eral court, to which a timely appeal or petition for writ

of certiorari has been taken, has entered an order of

affirmance, an order dismissing the appeal or an order

denying certiorari.” Citing a long line of consistent

Florida state court decisions, the court said that “[t]he

law is clear that a trialcourt. . . lacks the jurisdiction to

mitigate a legal sentence after the above sixty day

periods have elapsed” and observed that “[s]ince this is

a jurisdictional matter, we must of necessity reject the

defendants’ contentions which seek to excuse the trial

court’s delay in mitigating the sentences.” The District

Court of Appeal therefore quashed the trial court’s

mitigation order and reiristated the original three-year

prison terms. State v. Sotto, 348 So.2d 1222, 1223-24

(Dist.Ct.App., 1977). The Court of Appeal rejected

Sotto and Amor’s petition for rehearing and the Florida

Supreme Court subsequently denied certiorari,

thereby exhausting petitioners’ state remedies. Sotto v.

State, 359 So.2d 1219 (Fla., 1978).

On August 16, 1978, Sotto and Amor filed in the

United States District Court for the Southern District

of Florida the habeas corpus petition involved in this

appeal. They alleged that Florida R.Crim.P. 3.800(b) as

applied had “worked an intolerable injustice upon the

petitioners in this case,” violating their rights to equal

protection and counsel, inflicting cruel and unusual

punishment and denying them both procedural and

substantive due process.

7a

A United States magistrate entered a report on

November 3, 1978, recommending that the district

court afford petitioners relief. The magistrate relied

primarily upon our recent decision in United States v.

Mendoza, 5 Cir., 1978, 565 F.2d 1285, modified on re-

hearing en banc, 581 F.2d 89, interpreting

Fed.R.Crim.P. 35, the federal counterpart to Florida’s

Rule 3.800(b), to conclude that petitioners had been de-

nied “fundamental due process.” Calling it “neither fair

nor just” that “defendants who are fortunate enough

to file their motions when the Court is in a position to

rule promptly will have their cause heard,” while

“those less fortunate will find the door of the Court

barred,” he urged the district court to allow the Florida

trial court “a reasonable time in which to enter its

Order upon the petitioners’ motion for reduction of

sentence, failing which the writ shall issue.” In an order

dated November 16, the district judge approved the

magistrate’s report and directed the Florida trial court

to “enter its order upon the petitioners’ motions for re-

duction of sentence on or before December 31, 1978, or

the petitioners will be discharged.”

The state, through its official custodian, appeals the

district court’s November 16 order.

II. Fla.R.Crim.P. 3.800(b) Does Not Violate the Constitution

A. The Inapplicability of United States v. Mendoza

Though petitioners have challenged the con-

stitutionality of Rule 3.800(b) on a variety of grounds,

8a

they have concentrated on their substantive due

process claim, both before the district court and on

appeal. In essence, they argue that since “the delay of

the trial court in ruling on the petitioners’ motions to

mitigate was due solely to unavoidable circumstances

over which the petitioners had no control,”3 the Unit-

ed States Constitution compelled the Florida state

courts to forego in this case a strict construction of

Rule 3.800(b)’s jurisdictional time limit. They contend

that the rule must be read to allow a trial court to de-

cide within “a reasonable time” whether to grant a

timely filed motion to mitigate and assert that the

Florida state court's literal interpretation of the rule

“worked a fundamental unfairness upon the petition-

ers in this case,” thereby denying them substantive due

process. Petitioners rest this argument almost ex-

clusively upon our decision in United States v. Mendoza,

supra, interpreting Fed.R.Crim.P. 35, the federal

counterpart to Florida’s Rule 3.800(b).

The United States magistrate recognized the central

importance of petitioners’ substantive due process

claim, as he discussed notions of fairness and justice

3 Given our holding today, we accept for the sake of argument

petitioners’ contention that they in no way caused the delay in the

trial court’s ruling. However, we note that despite well-establish-

ed Florida precedent under which the trial court would lose its

jurisdiction to rule when the sixty-day period expired, petitioners

waited fifty-five days to file their motions and then apparently did

not protest the assignment of a new judge to the matter, even

though this plainly would require significant delay so that he could

become familiar with the case. Also, it is not apparent from the

record whether petitioners were in any way responsible for the

delay in supplying the trial transcript.

9a

and grounded his recommendations to the district

court in the concept of “fundamental due process.” Like

petitioners, the magistrate depended almost entirely

upon our Mendoza decision to conclude that the strict

application of Rule 3.800(b) in this case violated the

Constitution. He stated that Mendoza had “considered

the principles of due process involved in this case” and,

though conceding that “the Fifth Circuit was, of

course, interpreting a federal rule,” declared that “the

rationale underlying the Mendoza decision is clearly one

of fundamental due process.”

In our view, this reliance upon Mendoza is misplaced,

for contrary to the assertions of the magistrate, due

process was not the underlying rationale for that deci-

sion. Nor did we discuss any constitutional principles in

Mendoza. Rather, our decision turned upon general

precepts of statutory construction and a specific pro-

vision of the Federal Rules of Criminal Procedure that

sets forth the intended “purpose and construction” of

the Rules.

Fed.R.Crim.P. 35 provides in pertinent part that

“[t]he court may reduce a sentence within 120 days

after the sentence is imposed, or within 120 days after

receipt by the court of a mandate issued upon affirm-

ance of the judgment or dismissal of the appeal.”

Defendant Mendoza filed his motion to reduce sen-

tence fifty days after we had issued the mandate

affirming his conviction. However, “[d]ue to a com-

bination of factors beyond the defendant’s control, . . .

10a

the trial court failed to act on the motion within the 120

day period” and the district court then held that be-

cause the 120 day period had expired, it lacked jurisdic-

tion to pass on the defendant’s motion.” 565 F.2d at

1287.

We began our analysis in Mendoza with emphasis

upon a well-established principle of statutory inter-

pretation: If strict construction of a statute s language

would produce “an absurd, unjust, or unintended re-

sult,” or “ ‘merely an unreasonable one’ ” at odds with

the statute’s purpose, the provision “must be con-

strued so as to avoid that result.” Id. at 1288, 1289.¢ We

then observed that this rule of construction was’ par-

ticularly appropriate in interpreting the Federal Rules

of Criminal Procedure,” since they “were not intended

to be. . . a rigid code with an inflexible meaning, and

called particular attention to Rule 2, which identifies

the desired purpose and construction of the rules. Id. at

1289. Rule 2 states that “[t]hese rules are intended to

provide for the just determination of every criminal

proceeding. They shall be construed to ‘secure

simplicity in procedure, fairness in administration and

the elimination of unjustifiable expense and delay. In

light of that principle of statutory interpretation and

the statement of purpose contained in Rule 2, we de-

clined “slavishly [to] follow the literal language of [Rule

35] when that language leads . . . to an unjust and un-

oe i f Rule

i the Florida state courts’ interpretation OF

; Pag i from construing the agarniee in the

same manner that we interpreted Fed.R.Crim.P. 35.

Illa

reasonable result.” Id. at 1289-1290. Instead, we held

that a district court retains jurisdiction over timely filed

Rule 35 motions to reduce sentence “for a reasonable

time after the expiration [of] 120 days in those rare cir-

cumstances in which it is unable to decide the motion

within the 120 day period.” Id. at 1293.5

Thus, we did not base our Mendoza decision upon any

constitutional principles; not once did we mention the

Constitution. Several other circuits have adopted the

same construction of Rule 35, see United States v. Stollings,

4 Cir., 1975, 516 F.2d 1287; United States v, United States

District Court, 9 Cir., 1975, 509 F.2d 1352, cert. denied, 421

U.S. 962, 95 S.Ct. 1949, 44 L.Ed.2d 448 (1975); United

States v. Janice, 3 Cir., 1974, 505 F.2d 983, cert. denied, 420

U.S. 948, 95 S.Ct. 1332, 43 L.Ed.2d 427 (1975); United

States v. Polizzi, 9 Cir., 1974, 500 F.2d 856, cert. denied, 419

U.S. 1120, 95 S.Ct. 802, 42 L.Ed.2d 820 (1975); Leyoas v.

United States, 9 Cir., 1967, 371 F.2d 714; Dodge v. Bennett, 1

5 The Mendoza panel opinion attempted to “fine tune” Rule 35 by

identifying what constituted a “reasonable time” for filing. The

anel held that “when a sentence reduction motion is filed on or

batons the 60th day after sentencing or affirmance of the convic-

tion on appeal, a district court which fails to rule on the motion

within the 120 day period specified in the rule retains jurisdiction

to decide the motion for a reasonable time beyond that period.”

However, the panel also noted that “we do not intend to draw a

hard and fast rule and do not foreclose the possibility that in some

cases special circumstances might exist which would allow the dis-

trict court to retain jurisdiction after 120 days to rule on a motion

filed after 60 days.” 565 F.2d at 1292.

Upon rehearing en banc, we “unanimously agree[d] with the de-

cision that the district court should have retained jurisdiction to

eg on the motion for a reasonable time after the 120 day period,”

ut concluded that we should not use our supervisory power to

“establish the 60 day rule articulated in the panel opinion” and

therefore disavowed that portion of the decision. The en banc

court adopted the remainder of the panel opinion. 581 F.2d at 90.

12a

Cir., 1964, 335 F.2d 657, but these decisions also made

no reference to matters of constitutional law.

Accordingly, notwithstanding petitioners’ asser-

tions and the magistrate’s report adopted by the district

court, Mendoza and the other cases interpreting Rule 35

do not help determine the constitutionality of Rule

3.800(b). “Over federal proceedings we may exert a

supervisory power with greater freedom to reflect our

notions of good policy than we may constitutionally

exert over proceedings in state court .... [T]hese ex-

pressions of policy are not necessarily embodied in the

concept of due process.” Fay v. New York, 332 U.S. 261,

287, 67 S.Ct. 1613, 1627, 91 L.Ed. 2043 (1947) Jackson,

J.).

B. The Substantive Content of the Due Process Clause

“It is established beyond question that. . . substan-

tive due process rights are not limited to those liberties

specifically enumerated in the Bill of Rights.” St. Ann v.

Palisi, 5 Cir., 1974, 495 F.2d 423, 425. Yet substantive

due process has nonetheless “at times been a treacher-

ous field” for the federal courts. Moore v. City of East Cleve-

land, 431 U.S. 494, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977)

(Powell, J., plurality opinion). It raises a danger that our

decisions will “be based upon the idiosyncracies of a

merely personal judgment,” Malinski v. New York, 324

U.S. 401, 417, 65 S.Ct. 781, 789, 89 L.Ed. 1029 (1945)

(Frankfurter, J., concurring), a risk that judges will

“determine what is or is not constitutional on the basis

13a

of their own appraisal of what laws are unwise or un-

necessary.” Griswold v. Connecticut, 381 U.S. 479, 512, 85

S.Ct. 1678, 1697, 14 L.Ed.2d 510 (1965) (Black, J., dis-

senting). When, as here, we consider a claim that a

given state law works a denial of substantive due

process, we must skirt that danger and remember that

a state’s “procedure does not run [a]foul of the Four-

teenth Amendment because another method may seem

to our thinking to be fairer or wiser or to give a surer

promise of protection to the prisoner at the bar.” Snyder

v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 332, 78

L.Ed. 674 (1934) (Cardozo, J.).

The substantive content of the due process clause

which goes beyond the specific provisions of the Bill of

Rights embodies “a conception of fundamental justice.”

Shields v. Beto, 5 Cir., 1967, 370 F.2d 1003, 1004. E.g.,

Hebert v. Louisiana, 272 U.S. 312, 316, 47 S.Ct. 103, 104,

71 L.Ed. 270 (1926); Bute v. Illinois, 333 U.S. 640, 648, 68

S.Ct. 763, 768, 92 L.Ed. 986 (1948); Leland . State of Ore-

gon, 343 U.S. 790, 799, 73 S.Ct. 1002, 1008, 96 L.Ed.

1302 (1952); St. Ann v. Palisi, supra, 495 F.2d at 425. It

protects against state transgression only those per-

sonal immunities that are “implicit in the concept of

ordered liberty,” Palko v. Connecticut, 302 U.S. 319, 325,

58 S.Ct. 149, 152, 82 L.Ed. 288 (1937) (Cardozo, J.); Roe

v. Wade, 410 U.S. 113, 151,93 5S.Ct. 705, 726, 35 L.Ed.2d

147 (1973), leaving a state “free to regulate the pro-

cedure of its courts in accordance with its own concep-

tion of policy and fairness, unless in so doing it offends

some principle of justice so rooted in the traditions and

14a

conscience of our people as to be ranked as funda-

mental.” Snyder v. Massachusetts, supra, 291 U.S. at 105, 54

S.Ct. at 332.

“Fundamental rights,” implicit in the concept of

ordered liberty, include the right to vote, e.g., Harper v.

Virginia State Board, 383 U.S. 663, 86 S.Ct. 1079, 16

L.Ed.2d 169 (1966); the right of association, e.g.,

NAACP v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2

L.Ed.2d 1488 (1958); the right of access to the courts,

e.g., NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9

L.Ed.2d 405 (1963), and assorted freedoms against

state intrusion into family life and intimate personal

decisions, e.g., Moore v. City of East Cleveland, supra (right of

extended family to share household); Roe v. Wade, supra

(woman’s right to decide whether to have abortion);

Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d

1010 (1967) (freedom to marry person of another race);

Griswold v. Connecticut, supra (right to use contracep-

tives); Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571,

69 L.Ed. 1070 (1925) (parents’ right to send children to

private schools); Meyer v. Nebraska, 262 U.S. 390, 43

S.Ct. 625, 67 L.Ed. 1042 (1923) (parents’ right to have

children instructed in foreign language).

A state must advance a compelling justification to

preserve a law or regulation that breaches any funda-

mental right. But “[t]he state must prove a compelling

reason for a law only if it restricts a fundamental right;

so long as such a right is not affected a law need only

rationally relate to a legitimate government end.”

Woods v. Holy Cross Hospital, 5 Cir., 1979, 591 F.2d 1164,

1176 (emphasis added).

15a

C. Applying the Constitutional Principles

Petitioners Sotto and Amor assert, in summary

fashion, that the strict application of Rule 3.800(b) in

this case violated their fundamental right of access to

the courts. They contend that “[w]here, as here, one

petitioner gains access to the courts, and another does

not, solely by virtue of circumstances over which he

has no control, then the Federal Constitution is

seriously offended.”

We disagree that Florida has abridged petitioners’

right of access. At the outset, we note that the Con-

stitution does not require Florida to afford convicted

felons an opportunity to have their sentences miti-

gated. Further, once the state has chosen to establish a

mitigation procedure, it is not constitutionally obli-

gated to extend indefinitely the opportunity to seek

mitigation. Florida determined instead to provide con-

victed persons who desire sentence reduction access to

its courts for a limited time, by terminating the juris-

diction of its courts to hear and decide motions to miti-

gate when a statutorily fixed period expires. Sotto and

Amor thus enjoyed the same access to Florida’s courts

as all other persons seeking reduced sentences — a

sixty-day period during which the trial court had juris-

diction to rule upon their motions to mitigate.¢

6 Viewed another way, petitioners’ claim may be that once hav-

ing properly filed their motion to mitigate, they had a funda-

mental right to have it ruled upon, ever though the court lacked

jurisdiction to do so. We find it difficult to conceive of sucha right

to a ruling or judgment from a court that, by statute and under

well-established precedent, lacked jurisdiction to act.

16a

However, as this case illustrates, Florida’s mitiga-

tion scheme will in another way sometimes treat simi-

larly situated persons differently. A trial court may de-

cide one person’s motion, but lose jurisdiction to rule

upon that of another, even though both filed within the

sixty-day period and the second is in no way respon-

sible for any delay. If Florida’s choice of its sentence

mitigation system was simply arbitrary and bore no

rational relationship to a valid objective of govern-

ment, we would readily term the procedure “funda-

mentally unfair” and hold it unconstitutional. But Rule

3.800(b) is a rational means by which Florida can

, achieve at least three wholly legitimate governmental

ends. First, finality of result is in itself a justifiable goal

of acriminal justice system and Rule 3.800(b) ensures

that upon the expiration of a fixed time period a con-

viction and sentence will stand as final. Second, be-

cause convicted persons cannot prolong this process by

repeatedly filing new motions, the rule guards Florida’s

trial courts against a burdensome increase in their

workload. Finally, and most important, the rule guar-

antees that trial courts will not inadvertently usurp the

power of the parole board by making delayed rulings on

motions to mitigate based upon prison conduct. The

Florida Supreme Court’ obviously did not want to

“permit indefinite supervision by a trial court over all

legal sentences it imposes,” for as a Florida appeals

court observed, “[s]uch supervision does not accord

with reason or public policy. Under our tripartite

7 The Florida Supreme Court promulgates the state's rules of

criminal procedure.

17a

system of government there must come a time when

the judiciary’s power to reduce a lawful sentence ends

and vests in the executive department.” State v. Evans,

225 So.2d 548, 550 (Fla.App., 1969).8

Another sentence mitigation rule, written or inter-

preted in a different way, might well serve these same

ends without producing results like those of which

Sotto and Amor complain.? However, the test of con-

stitutionality is not whether there exists, inour view, a

more rational or otherwise preferable alternative law.

Nor does it matter under the Constitution that if we

were Florida judges, we might have promulgated an-

other rule or interpreted this one differently. Because

we cannot say that Rule 3.800(b) as applied denied peti-

tioners any fundamental rights and because we think

the rule is rationally related to several valid objectives

of government, we conclude that it does not violate the

due process clause. Accordingly, we hold that the dis-

trict court erred in granting Sotto and Amor’s habeas

corpus petition and therefore reverse.

REVERSED AND REMANDED.

8 Sotto and Amor also contend that the application of Rule

3.800(b) in this case denied them equal protection under the Con-

stitution. Our discussion of petitioners’ substantive due process

claim disposes of this argument as well. No fundamental right has

been abridged, petitioners do not belong to any suspect class and

the Rule is a rational means by which to obtain several legitimate

governmental ends.

9 Petitioners suggest Fed.R.Crim.P. 35, as interpreted in Mendoza

and elsewhere, as such an alternative. We note, though, the pos-

sibility that the Florida Supreme Court did not want the state’s

courts forced to determine on a case-by-case basis what con-

stitutes a “reasonable time” for filing, a process which would

undermine the’ precision and certainty afforded by the current

rule.

18a

APPENDIX “B”

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

October Term, 19

No. 79-1003

D.C. Docket Nos. 78-3857-CIV-JLK and

78-3858-CIV-JLK

Anibal SOTTO,

Petitioner-Appellee,

versus

Louie L. WAINWRIGHT,

tions,

Secretary, Department of Correc

‘ Respondent-Appellant.

Joaquin A. AMOR,

Petitioner-Appellee,

versus

Louie L. WAINWRIGHT,

tions

etary, Department of Correc :

rene Respondent-Appellant.

Appeal from the United States District Court for the

Southern District of Florida

19a

Before WISDOM, AINSWORTH and RONEY, Cir-

cuit Judges.

JUDGMENT

This cause came on to be heard on the transcript of

the record from the United States District Court for

the Southern District of Florida, and was argued by

counsel;

ON CONSIDERATION WHERECE, It is now here

ordered and adjudged by this Court that the order of

the District Court appealed from, in this cause be, and

the same is hereby, reversed; and that this cause be, and

the same is hereby remanded to the said District Court

in accordance with the opinion of this Court.

August 22, 1979

ISSUED AS MANDATE:

APPENDIX “C”

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

OFFICE OF THE CLERK

September 28, 1979

20a

TO ALL PARTIES LISTED BELOW:

NO. 79-1003 — ANIBAL SOTTO v. WAIN-

WRIGHT; JOAQUIN A. AMOR v.

WAINWRIGHT

Dear Counsel: ;

This is to advise that an order has this day been enter-

ed denying the petition for rehearing, and no member

of the panel nor Judge in regular active service on the

Court having requested that the Court be polled on re-

hearing en banc (Rule 35, Federal Rules of Appellate

Procedure; Local Fifth Circuit Rule 16) the petition for

rehearing en banc has also been denied.

See Rule 41, Federal Rules of Appellate Procedure for

issuance and stay of the mandate.

Very truly yours,

GILBERT F. GANUCHEAU,

Clerk

Is) SALLY HAYWARD

Deputy Clerk

cc: Mr. Steven R. Jacob

Mr. Geoffrey C. Fleck

fine