WILLIAM CHIPPAS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Chippas appealed the denial of a motion for post-conviction relief challenging his resentencing under Florida Rule of Criminal Procedure 3.850. The appellate court affirmed the denial, holding that Chippas could not raise sentencing issues in a post-conviction motion that could have been raised on direct appeal from the resentencing.
The court held that Rule 3.850 does not authorize relief based on grounds that could have been raised at trial or on direct appeal. Since Chippas was entitled to elect sentencing under the guidelines at his resentencing hearing and the alleged denial of this right was known at the time of sentencing, this issue could have been raised on direct appeal and therefore cannot be raised in a post-conviction motion.
[1] Matters which could have been raised on direct appeal may not be considered by motion for post-conviction relief.
[2] A motion for post-conviction relief does not authorize relief based upon grounds which could have or should have been raised at trial and, if properly preserved, on direc…
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Join FLexlaw to unlock all legal intelligence“Matters which could have been raised on direct appeal may not be considered by motion under rule 3.850.”
Establishes the core procedural bar to post-conviction relief for issues cognizable on direct appeal
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Join FLexlaw to unlock all legal intelligenceChippas was originally convicted of conspiracy to traffic and trafficking in cannabis, receiving an eight-year sentence on the conspiracy count and a …
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UPCHURCH, Judge.
This is an appeal from an order denying post-conviction relief. Chippas was originally convicted and sentenced for conspiracy to traffic and for trafficking in cannabis. The court imposed an eight-year sentence on the conspiracy count and a thirty-year split sentence on the trafficking count (twelve years in prison followed by eighteen years probation). The sentences were affirmed on appeal. In January, 1984, the thirty-year split sentence was vacated by the trial court pursuant to Villery v. Flor ida Parole and Probation Commission, 396 So. 2d 1107 (Fla.1981). Chippas was resentenced and did not appeal the resen-tences. In May, 1984, Chippas filed a motion for review under Florida Rule of Criminal Procedure 3.850 contending he should have been resentenced under the sentencing guidelines.
We conclude that the motion for post-conviction relief was properly denied. Matters which could have been raised on direct appeal may not be considered by motion under rule 3.850. See, e.g., Smith v. State, 453 So. 2d 388 (Fla.1984); McCrae v. State, 437 So. 2d 1388 (Fla.1983). Furthermore, rule 3.850 has been amended, effective January 1, 1985, to state:
This rule does not authorize relief based upon grounds which could have or should have been raised at trial and, if properly preserved, on direct appeal of the judgment and sentence.
The Florida Bar Re Amendment to Rules of Criminal Procedure (Rule 3.850), 460 So. 2d 907 (Fla.1984).
Here Chippas was entitled to elect sentencing under the guidelines at his re-sentencing hearing. See Reid v. State, 460 So. 2d 921 (Fla. 2d DCA 1984). However, the denial of his request to be sentenced under the guidelines was known at the time of sentencing and the alleged error could have been raised on direct appeal. Since the motion raised an issue which could have been addressed on appeal, the order of the trial court denying relief is affirmed. See Bass v. State, 478 So. 2d 461 (Fla. 1st DCA 1985) (defendant not entitled to raise issue of alleged error in imposing consecutive mandatory sentences in motion for post-conviction relief where matter at issue could have been raised on direct appeal).
AFFIRMED.
COBB, C.J., and ORFINGER, J., concur.
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Citator
Cited By
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Senior v. State, 502 So. 2d 1360 (Fla. 5th DCA 1987)…Procedure 3.800 or 3.850 if the issue could have been raised on a direct appeal. See Efraimson v. State, 493 So. 2d 79 (Fla. 4th DCA 1986); Richardson v. State, 491 So. 2d 1242 (Fla. 1st DCA), dismissed, 500 So. 2d 545 (Fla.1986); Chippas v. State, 482 So. 2d 528 (Fla. 5th DCA 1986); Adams v. State, 462 So. 2d 884 (Fla. 2d DCA 1985). Exceptions to this rule are provided by Florida Rule of Criminal Procedure 3.800(a), as recently amended by the Florida Supreme Court in the case of State v. Whitfield, 487 So.…
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Wright v. State, 492 So. 2d 394 (Fla. 1st DCA 1986)…ntencing occurs after the October 1, 1983 effective date of the guidelines. Query v. State, 455 So. 2d 554 (Fla. 1st DCA 1984); Knight v. State, 455 So. 2d 457 (Fla. 1st DCA 1984); Adams v. State, 483 So. 2d 121 (Fla. 2d DCA 1986); Chippas v. State, 482 So. 2d 528 (Fla. 5th DCA 1986). Since Wright’s motion for post-conviction relief presents a facial allegation of ineffective assistance of counsel, we reverse and remand with directions to the trial court to either conduct an evidentiary hearing or attach to…
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Carter v. State, 491 So. 2d 1288 (Fla. 1st DCA 1986)…, of appellant's request to be sentenced under the guidelines was known at the time of sentencing and the alleged error should have been raised on direct appeal. Thus, that ground also is [*1289] not cognizable by 3.850 motion. See Chippas v. State, 482 So. 2d 528 (Fla. 5th DCA 1986). Since the allegations in appellant’s motion do not state grounds for which relief can be granted, the trial court’s denial of the motion is affirmed. MILLS and NIMMONS, JJ., concur.…
Authorities Cited
- Villery v. The Fla. Parole & Prob. Comm'n, 396 So. 2d 1107 (Fla. 1980)
- McCRAE v. State, 437 So. 2d 1388 (Fla. 1983)
- THE FLA. BAR RE AMENDMENT TO RULES OF CRIM. PROCEDURE (RULE 3.850), 460 So. 2d 907 (Fla. 1984)
- Smith v. State, 453 So. 2d 388 (Fla. 1984)
- Bass v. State, 478 So. 2d 461 (Fla. 1st DCA 1985)
- Reid v. State, 460 So. 2d 921 (Fla. 2d DCA 1984)