WILLIAM HENRY LAZARUS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A motion to vacate a sentence cannot be used as a substitute for a direct appeal to challenge procedural defects in sentencing.
Defendant pled guilty to burglary and was sentenced as an habitual offender. He filed a motion to vacate the sentence, arguing he did not receive a se…
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COBB, Judge.
The appellant, defendant below, pled guilty to the crime of burglary and in July, 1978, was sentenced to a prison term of seven years under section 775.084, Florida Statutes (1977), as an habitual offender. He did not appeal therefrom, but he did file a 3.850 motion in September, 1981, attacking his seven-year sentence on the basis that he “did not receive a separate hearing as required by law before being sentenced as a recidivist.” This motion was summarily denied by order of the trial court dated February 23, 1981, and Lazarus now appeals that order. The argument advanced by appellant is that he could not be sentenced as a recidivist in the absence of a separate information filed by the state subsequent to the burglary conviction. His reliance upon Wright v. State, 291 So. 2d 118 (Fla. 2d DCA 1974), and section 775.11, Florida Statutes (1973) (which Wright relied upon), is misplaced for the simple reason that the latter statute was repealed by Ch. 74-383, § 66, Laws of Fla. In the absence of the repealed statute, the attack raised here by the appellant is not the proper subject matter of a post-conviction motion to vacate under Florida Rule of Criminal Procedure 3.850.
The trial court clearly had jurisdiction to impose an enhanced sentence, and the argument that the procedure by which it did so was procedurally defective in some manner is an issue which could have been raised on direct appeal. A motion to vacate a sentence cannot be used as a substitute for an appeal, and denial of the motion was proper. Thompson v. State, 410 So. 2d 500 (Fla. February 11, 1982) [1982 FLW 85]; Goode v. State, 403 So. 2d 931 (Fla.1981); Meeks v. State, 382 So. 2d 673 (Fla.1980).
AFFIRMED.
FRANK D. UPCHURCH, Jr. and CO-WART, JJ., concur.
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Watts v. State, 443 So. 2d 479 (Fla. 5th DCA 1984)…PER CURIAM. AFFIRMED. See Lazarus v. State, 412 So. 2d 54 (Fla. 5th DCA 1982). COBB, FRANK D. UPCHURCH, Jr., and SHARP, JJ., concur.…
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Grant v. State, 611 So. 2d 110 (Fla. 5th DCA 1992)…refuting the claims. See Harich v. State, 484 So. 2d 1239 (Fla.1986). Although it is true that procedural errors in habitual offender sentencing must be raised on appeal and are barred from consideration in a Rule 3.850 proceeding, Lazarus v. State, 412 So. 2d 54 (Fla. 5th DCA 1982), a habitual offender sentence applied to an unqualified defendant constitutes an illegal sentence which exceeds the statutory limits and may be challenged in a Rule 3.850 motion even if not raised on appeal. See Debose v. State,…
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Pliny H. Sohl v. State, 710 So. 2d 676 (Fla. 5th DCA 1998)…a harmless error analysis. In Massey, the court found that the defendant had actual knowledge of the state’s intention to seek habitualization prior to entering a plea and the absence of written notice was harmless error. See also Lazarus v. State, 412 So. 2d 54 (Fla. 5th DCA 1982)(procedural errors in habitual offender sentencing must be raised on appeal and are barred from consideration in Rule 3.850 proceeding). In the present case, Sohl alleges, and the state does not dispute, there was neither written…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Meeks v. State, 382 So. 2d 673 (Fla. 1980)
- Thompson v. State, 410 So. 2d 500 (Fla. 1982)
- Goode v. State, 403 So. 2d 931 (Fla. 1981)
- Wright v. State, 291 So. 2d 118 (Fla. 2d DCA 1974)