Bessie, I don't believe he presently has the option of filing an appeal.
According to Florida Rules of Appellate Procedure Rule 9.140, a defendant may not appeal from a guilty or nolo contendere plea except under very few specific instances, one of which would be an unlawful sentence.
I'm not so sure about that, Papa.
[FONT="]RULE 9.140 APPEAL PROCEEDINGS IN CRIMINAL CASES[/FONT]
[FONT="](a) Applicability. Appeal proceedings in criminal cases shall be as in civil cases except as modified by this rule.[/FONT]
[FONT="](b) Appeals by Defendant.[/FONT]
[FONT="]2) Guilty or Nolo Contendere Pleas. [/FONT]
[FONT="](A) Pleas. A defendant may not appeal from a guilty or nolo contendere plea except as follows: [/FONT][FONT="]
[/FONT][FONT="](i) Reservation of Right to Appeal. A defendant who pleads guilty or nolo contendere may expressly reserve the right to appeal a prior dispositive order of the lower tribunal, identifying with particularity the point of law being reserved.[/FONT]
[FONT="](ii) Appeals Otherwise Allowed. A defendant who pleads guilty or nolo contendere may otherwise directly appeal only[/FONT]
[FONT="]a. the lower tribunal's lack of[/FONT] subject matter jurisdiction;[FONT="]
b. a violation of the plea agreement, if preserved by a motion to withdraw plea;[/FONT]
[FONT="] c. an involuntary plea, if preserved by a motion to withdraw plea; [/FONT]
[FONT="] d. a sentencing error, if preserved; o[/FONT][FONT="]r
e. as otherwise provided by law.[/FONT]
http://floridarulesofappellateprocedure.com/rules/2009/08/rule-9140-appeal-proceedings-i.php
This Motion actually appears to be really making a claim of an "unlawful" sentence - not an "illegal" sentence defined by Rule 3.800, and Florida case law.
Florida Rules of Criminal Procedure
3.800. Correction, Reduction and Modification of Sentences
(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 scoresheet, or a sentence that does not grant proper credit for time served when it is affirmatively alleged that the court records demonstrate on their face an entitlement to that relief...
Florida Rules of Criminal Procedure
3.850. Motion to Vacate, Set Aside or Correct Sentence
(a) Grounds for Motion.
The following grounds may be claims for relief from judgment or release from custody by a person who has been tried and found guilty or has entered a plea of guilty or nolo contendere before a court established by the laws of Florida:
(1) The judgment was entered or sentence was imposed in violation of the Constitution or laws of the United States or the State of Florida.
(2) The court did not have jurisdiction to enter the judgment.
(3) The court did not have jurisdiction to impose the sentence.
(4) The sentence exceeded the maximum authorized by law.
(5) The plea was involuntary.
(6) The judgment or sentence is otherwise subject to collateral attack.
(b) Time Limitations. A motion to vacate a sentence that exceeds the limits provided by law may be filed at any time.
No other motion shall be filed or considered pursuant to this rule if filed more than 2 years after the judgment and sentence become final in a noncapital case or more than 1 year after the judgment and sentence become final in a capital case in which a death sentence has been imposed unless it alleges that...
http://www.floridabar.org/TFB/TFBResources.nsf/Attachments/BDFE1551AD291A3F85256B29004BF892/$FILE/Criminal.pdf?OpenElement
Consequently, the challenge should have been brought by a direct appeal of his sentence, not in a Motion to Correct Illegal Sentence.
However, the filing of an appeal is apparently, now, unavailable to Mr. Cummings, as it is time barred. A defendant must file the notice prescribed by rule 9.110(d) between rendition of a final judgment and 30 days following rendition of a written order imposing sentence.
Do you have a reference that distinguishes "unlawful" from "illegal" within the context of the Florida law and this issue?
I'd say procedurally, Ron's okay. The circuit court can correct the sentence, but ultimately it likely will be up to an appellate court to decide 1) whether the motion was filed timely and correctly within the applicable subdivisions of the law; and 2) the merit of his argument, i.e., whether or not the court who convicted and sentenced Ron had subject matter jurisdiction providing the authority to do so.
Further reading:
http://www.criminaldefenseattorneytampa.com/PracticeAreas/PostConviction.aspx
http://www.law.fsu.edu/library/flsupct/sc95707/95707b.pdf
Now I'm interested in understanding the possible remedies to correct the sentence if the motion is approved.