LORENZO MITCHELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Mitchell appeals the trial court's summary denial of post-conviction relief under Rule 3.850, arguing the trial court failed to obtain and consider a required pre-sentence investigation report before sentencing him as a juvenile first-time felony offender. The court affirmed the denial, holding that the alleged sentencing defect was a direct appeal issue and therefore not cognizable in post-conviction proceedings.
Mitchell is not entitled to post-conviction relief under Rule 3.850 because the trial court's alleged failure to receive and consider a required pre-sentence investigation report constitutes a direct appealable issue that should have been raised on direct appeal, not in post-conviction proceedings. The trial court correctly summarily denied the motion.
[1] Matters that could have been raised on direct appeal are not cognizable in a motion for postconviction relief.
[2] A trial court's failure to receive or consider a pre-sentence investigation report when required by rule constitutes reversible error that is appealable.
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Join FLexlaw to unlock all legal intelligence“It has repeatedly been held that relief under Rule 3.850 is not available as to any matters which could have been raised by direct appeal.”
Establishes the fundamental principle that post-conviction relief is not available for issues that should have been raised on direct appeal
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Join FLexlaw to unlock all legal intelligenceMitchell pleaded nolo contendere to one count of burglary of a dwelling and one count of involuntary sexual battery. Mitchell was a juvenile and first…
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ORFINGER, Judge.
Mitchell appeals an order of the trial court summarily denying relief under Rule 3.850, Florida Rules of Criminal Procedure.
The record reflects that appellant pleaded nolo contendere to one count of burglary of a dwelling and one count of involuntary sexual battery. Appellant contends that he was a juvenile and a first-time felony offender and that under Rule 3.710, Florida Rules of Criminal Procedure, the trial court could not sentence him without first receiving and considering a pre-sentence investigation report. There is no contention that the sentence is otherwise not authorized by law. It has repeatedly been held that relief under Rule 3.850 is not available as to any matters which could have been raised by direct appeal. Peterson v. State, 237 So. 2d 223 (Fla. 1st DCA 1970); Stallings v. State, 319 So. 2d 640 (Fla. 1st DCA 1975); Falagan v. State, 267 So. 2d 109 (Fla. 2d DCA 1972); Burau v. State, 353 So. 2d 1183 (Fla.3d DCA 1977).
The trial court’s failure to receive or consider a pre-sentence investigation report prior to sentencing where such report is required under Rule 3.710 is appealable and constitutes reversible error. Harden v. State, 290 So. 2d 551 (Fla. 1st DCA 1974); Ussery v. State, 350 So. 2d 839 (Fla. 1st DCA 1977); DeOca v. State, 326 So. 2d 453 (Fla. 4th DCA 1976). The receipt and consideration of the pre-sentence report can be waived. Rinaldi v. State, 343 So. 2d 94 (Fla. 3d DCA 1977). Under the circumstances shown here, there is no error of constitutional magnitude such as was found in Hicks v. State, 336 So. 2d 1244 (Fla. 4th DCA 1976).
Since the trial court’s alleged failure to receive and consider a pre-sentence investigation report could have been the subject of a direct appeal, appellant is not entitled to now attack the sentence under Rule 3.850. The lower court was correct in summarily denying the motion, so the order appealed from is
AFFIRMED.
COBB and UPCHURCH, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Dismuke v. State, 388 So. 2d 1324 (Fla. 5th DCA 1980)…er raised or could have been raised on direct appeal. It is the law of this state that relief under Rule 3.850 is not available as to any matters which were raised on direct appeal or which could have been raised on direct appeal. Mitchell v. State, 381 So. 2d 760 (Fla. 5th DCA 1980); Merrill v. State, 364 So. 2d 42 (Fla. 1st DCA 1978), cert. denied, 372 So. 2d 470 (1979); Burau v. State, 353 So. 2d 1183 (Fla. 3d DCA 1977). Attached to the order entered below is a copy of the statement of judicial acts to be…
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Savino v. State, 397 So. 2d 1236 (Fla. 4th DCA 1981)…to the trial court prior to a plenary appeal which appellant perfected in Cases # 78-1502 and # 78-1504. The question presented here was not raised in those appeals, but should have been. Adams v. State, 380 So. 2d 423 (Fla.1980); Mitchell v. State, 381 So. 2d 760 (Fla. 5th DCA 1980). The order appealed from is affirmed. DOWNEY, MOORE and BERANEK, JJ., concur.…
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Owens v. State, 397 So. 2d 1235 (Fla. 2d DCA 1981)…bility of certain impeachment evidence. It has repeatedly been held that relief under rule 3.850 is not available as to any matters which could have been raised by direct appeal. Falagan v. State, 267 So. 2d 109 (Fla.2d DCA 1972); Mitchell v. State, 381 So. 2d 760 (Fla.5th DCA 1980). RYDER, Acting C. J., and DANAHY and CAMPBELL, JJ., concur.…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ussery v. State, 350 So. 2d 839 (Fla. 1st DCA 1977)
- Peterson v. State, 237 So. 2d 223 (Fla. 1st DCA 1970)
- Harden v. State, 290 So. 2d 551 (Fla. 1st DCA 1974)
- Stallings v. State, 319 So. 2d 640 (Fla. 1st DCA 1975)
- Burau v. State, 353 So. 2d 1183 (Fla. 3d DCA 1977)
- Michael v. Sealy, 353 So. 2d 1183 (Fla. 1st DCA 1977)
- Hicks v. State, 336 So. 2d 1244 (Fla. 4th DCA 1976)
- DeOCA v. State, 326 So. 2d 453 (Fla. 4th DCA 1976)
- Rinaldi v. State, 343 So. 2d 94 (Fla. 3d DCA 1977)
- Falagan v. State, 267 So. 2d 109 (Fla. 2d DCA 1972)