ROBERT L. BELLCASE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A prisoner on probation, even with jail time as a condition, is not considered "in custody" or "sentenced" for the purpose of Rule 3.850 post-conviction relief.
Appellant sought post-conviction relief under Rule 3.850 after being placed on probation with jail time as a condition. He was no longer incarcerated …
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ORFINGER, Judge.
Appellant contends that the trial court erred in denying his motion for post-conviction relief, because appellant was not “a prisoner in custody” as required by Florida Rules of Criminal Procedure 3.850.1 The record before us makes it appear that after conviction, appellant was placed on probation for five years upon condition that he serve eleven months and thirty days in jail, and that he is no longer incarcerated.
The language of the rule is specific and clear. Only a “prisoner in custody under sentence” may apply for relief under this rule. Petitioner is not in “custody” nor has he been “sentenced,” 2 thus he has no standing under this rule. Weir v. State, 319 So. 2d 80 (Fla.2d DCA 1975).
The judgment is AFFIRMED.
COBB and COWART, JJ., concur. . Florida Rule of Criminal Procedure 3.850: A prisoner in custody under sentence of a court established by the laws of Florida . .. may move the court which entered the judgment or imposed the sentence to vacate, set aside or correct the judgment or sentence.
. Under Florida Rule of Criminal Procedure 3.790, imposition of sentence is not made upon a defendant who is to be placed on probation. Neither does incarceration as a condition of probation constitute a “sentence.” Villery v. The Florida Parole and Probation Commission, 396 So. 2d 1107 (Fla.1980).
Cases With Similar Vibessemantic neighbors from the corpus
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State v. Bolyea, 520 So. 2d 562 (Fla. 1988)…ustice. We have for review Bolyea v. State, 508 So. 2d 457 (Fla. 2d DCA 1987), based on certified direct conflict with Decker v. State, 476 So. 2d 330 (Fla. 4th DCA 1985), Ferguson v. Stone, 415 So. 2d 98 (Fla. 4th DCA 1982), and Bellcase v. State, 406 So. 2d 116 (Fla. 5th DCA 1981), review denied, 417 So. 2d 328 (Fla.1982). We have jurisdiction. Art. V, § 3(b)(4), Fla. Const. The sole issue presented is whether court-ordered probation in and of itself constitutes “custody under sentence” for purposes of Ru…1 / 2
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Rita v. State, 470 So. 2d 80 (Fla. 1st DCA 1985)…ance. . The state necessarily concedes that Rita was in custody, but contends he was not under sentence within the meaning of that requirement in rule 3.850, and relies on Ferguson v. Stone, 415 So. 2d 98 (Fla. 4th DCA 1982), and Bellcase v. State, 406 So. 2d 116 (Fla. 5th DCA 1981), rev. den., 417 So. 2d 328 (Fla.1982), as authority for Rita's lack of standing under the language used in rule 3.850. We find that neither case is inconsistent with our holding. In Ferguson, unlike the instant case, the court wi…
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Ferguson v. The Honorable Barry J. Stone, 415 So. 2d 98 (Fla. 4th DCA 1982)…y, we deny the petition. BERANEK and HURLEY, JJ., concur. . Because petitioner is not “a prisoner in custody under sentence,” as Florida Rule of Criminal Procedure 3.850 requires, he is unable to seek post-conviction relief. See Bellcase v. State, 406 So. 2d 116 (Fla. 5th DCA 1981) (probationer lacks standing under rule 3.850). Therefore, petitioner’s remedy is to seek a writ of certiora-ri. . The victim’s guardian ad litem in the proceedings was present. . The alleged child abuse apparently included beat…
Previewing 3 of 5 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)
- Weir v. State, 319 So. 2d 80 (Fla. 2d DCA 1975)