GREGG JOHN DESANTIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A Florida appellate court reversed a trial court's denial of post-conviction relief under Rule 3.850, holding that the trial court failed to properly comply with procedural requirements and that the appellant's sentence for grand theft appeared to be illegal under Villery v. Florida Parole and Probation Commission.
The trial court must comply with Rule 3.850's procedural requirements by attaching relevant files and records and including a statement of appellate rights when denying such motions. A trial court has authority to correct illegal sentences under Rule 3.800(a) and may apply Rule 3.850 sua sponte when appropriate. DeSantis's sentence appeared illegal under Villery and entitled him to immediate relief.
[1] A trial court order denying relief under Florida Rule of Criminal Procedure 3.850 must attach portions of the files and records that conclusively show the prisoner is ent…
[2] A trial court has the authority to correct an illegal sentence at any time, and can apply the correct rule of procedure even if the movant cites the wrong one.
Previewing 2 of 3 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“In those instances when such denial is not predicated upon the legal insufficiency of the motion on its face, a copy of that portion of the files and records which conclusively show that the prisoner is entitled to no relief shall be attached to the order.”
Establishes the mandatory procedural requirement for Rule 3.850 orders denying relief
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Join FLexlaw to unlock all legal intelligenceGregg John DeSantis, proceeding without counsel, filed a motion seeking to correct what he claimed was an illegal sentence. DeSantis was sentenced to …
The full statement of facts, procedural history, and disposition for this case are member content.
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DAUKSCH, Chief Judge.
This matter is before us to review an order denying relief requested under Florida Rule of Criminal Procedure 3.850. We have said over and over what is required under that rule and with a reading of the rule itself it is quite apparent the order denying relief requires “In those instances when such denial is not predicated upon the legal insufficiency of the motion on its face, a copy of that portion of the files and records which conclusively show that the prisoner is entitled to no relief shall be attached to the order.” Rule 3.850, Fla.R. Crim.P. Benton v. State, 401 So. 2d 1114 (Fla. 5th DCA, 1981) [1981 F.L.W. 765]; Rice v. State, 400 So. 2d 461 (Fla. 5th DCA, 1980); Brown v. State, 390 So. 2d 447 (Fla. 5th DCA 1980); Battle v. State, 388 So. 2d 1323 (Fla. 5th DCA 1980); Gunter v. State, 380 So. 2d 1198 (Fla. 5th DCA 1980); Gunn v. State, 378 So. 2d 105 (Fla. 5th DCA 1980).
The motion of appellant is sufficient on its face and seeks to correct what appellant says is an illegal sentence under Villery v. Florida Parole and Probation Commission, 396 So. 2d 1107 (Fla.1981). The fact that appellant, proceeding without a lawyer, says he is entitled to relief under Florida Rule of Criminal Procedure 3.800 (rather than 3.850), does not give the court authority to deny a request to correct an illegal sentence both because Rule 3.800(a) gives the trial court the authority to at any time correct an illegal sentence and because the court can on its own decide the proper rule to use to correct the sentence. In this case the most proper rule would be Rule 3.850 because it requires the court to correct the illegal sentence.
The appellant has furnished us with a copy of a judgment which shows he was sentenced to two years imprisonment and three years probation for the crime of grand theft. If this is the judgment and sentence in this case, as it appears to be, then appellant is entitled to immediate relief. Therefore we reverse the order denying relief and remand this matter to the trial court for further consideration. We also note the order denying relief fails to “include a statement that the movant has the right to appeal . . . the order” as required in the rule.
REVERSED AND REMANDED.
ORFINGER and COWART, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (11 total)
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Brown v. State, 508 So. 2d 522 (Fla. 2d DCA 1987)…e information nor the evidence support a finding that victim injury was an element of that offense. . A trial court has authority to correct a sentence pursuant to Rule 3.800 in the circumstance where Rule 3.850 has been invoked. DeSantis v. State, 400 So. 2d 525 (Fla. 5th DCA 1981). . We affirmed the validity of the departure grounds in Brown v. State, 472 So. 2d 1188 (Fla. 2d DCA 1985).…
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Hall v. State, 643 So. 2d 635 (Fla. 1st DCA 1994)…DCA 1992); and Priest v. State, 483 So. 2d 900 (Fla. 1st DCA 1986). In the instant case, the court below should have treated Hall’s motion as if filed pursuant to rule 3.850.1 See Young v. State, 619 So. 2d 378 (Fla. 2d DCA 1993); DeSantis v. State, 400 So. 2d 525 (Fla. 5th DCA 1981). We reverse and remand this cause with directions to attach those portions of the files and records conclusively showing that Hall is entitled to no relief, or, if the record does not conclusively contradict the allegations, to…
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Orestes Martell v. State, 676 So. 2d 1030 (Fla. 3d DCA 1996)…State, 361 So. 2d 433 (Fla. 1st DCA 1978); Johnson v. State, 355 So. 2d 857 (Fla. 3d DCA 1978). Finally, we recognize that a court has the authority to convert a 3.800(a) action into a 3.850 proceeding in the interest of justice. DeSantis v. State, 400 So. 2d 525 (Fla. 5th DCA 1981). However, the defendant’s conviction became final more than two years ago and he cannot now utilize Rule 3.800(a) as a means of circumventing the strict timing requirements imposed by Rule 3.850. See Alexander v. State, 571 So. 2…
Previewing 3 of 11 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Villery v. The Fla. Parole & Prob. Comm'n, 396 So. 2d 1107 (Fla. 1980)
- Gunn v. State, 378 So. 2d 105 (Fla. 5th DCA 1980)
- Battle v. State, 388 So. 2d 1323 (Fla. 5th DCA 1980)
- Vino Cato v. State, 401 So. 2d 1114 (Fla. 4th DCA 1981)
- Rice v. State, 400 So. 2d 461 (Fla. 5th DCA 1980)
- Brown v. State, 390 So. 2d 447 (Fla. 5th DCA 1980)
- Gunter v. State, 380 So. 2d 1198 (Fla. 5th DCA 1980)
- Brown v. State, 380 So. 2d 1198 (Fla. 2d DCA 1980)