EUGENE GARTON ADAMS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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An order denying a motion to correct, reduce, or modify a sentence is not appealable. Rule 3.800 is not the proper vehicle for challenging the constitutionality of a sentence.
Appellant was convicted of several crimes and received consecutive sentences. He filed a motion to correct his sentence, alleging it violated the Eigh…
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Opinion
PER CURIAM.
In 1978 appellant was convicted of sexual battery, kidnapping, attempted murder, and possession of a firearm while engaged in a criminal offense, for which he received consecutive sentences totalling one hundred and forty-four years.
In September 1985 appellant filed a motion to correct, reduce and modify sentence, pursuant to Florida Rule of Criminal Procedure 3.800, alleging that under Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), the sentences violate the eighth amendment to the United States Constitution prohibiting cruel and unusual punishment. From an order denying said motion, this appeal was perfected.
We dismiss the appeal since an order denying a motion to correct, reduce or modify a sentence is not appealable. Davenport v. State, 414 So. 2d 640 (Fla. 2d DCA 1982); Hallman v. State, 371 So. 2d 482 (Fla.1979), aff'g 343 So. 2d 912 (Fla. 2d DCA 1977); Parker v. State, 214 So. 2d 632 (Fla. 2d DCA 1968). Furthermore, in State v. Smith, 360 So. 2d 21 (Fla. 4th DCA 1978), this court held that rule 3.800 was not the appropriate vehicle for the submission of the issue of the constitutionality of the original sentence imposed upon the defendant. Accordingly, we dismiss this appeal and, as we did in Smith, we dispose of the case without prejudice to appellant’s applying to the trial court under Florida Rule of Criminal Procedure 3.850 for post-conviction relief.
We also note that, in attacking the constitutionality of the sentence, appellant failed to allege facts as required by the Solem decision in order to make a prima facie showing of an eighth amendment violation. The appellant will now have another opportunity to sufficiently allege such a claim and, if sufficiently alleged, to support those allegations with proof upon hearing.
DISMISSED.
DOWNEY, ANSTEAD and GUNTHER, JJ., concur.
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Johnson v. State, 543 So. 2d 1289 (Fla. 4th DCA 1989)…diction in this case. JURISDICTION Neither side to this appeal has raised the issue of this court’s jurisdiction, but we find it is necessary before reaching the merits of this case, particularly in light of our earlier decision in Adams v. State, 487 So. 2d 1209 (Fla. 4th DCA 1986). In Adams, we held that an order denying a motion to correct, reduce or modify a sentence under rule 3.800 is not appealable. The Adams decision was intended to prevent appeals from orders on requests to mitigate or modify a sent…1 / 2
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Oser v. State, 699 So. 2d 844 (Fla. 4th DCA 1997)…ocedure 9.020(g) & Florida Rule of Criminal Procedure 3.800, 675 So. 2d 1374 (Fla.1996). The change became effective July 1, 1996. [*845] In Johnson v. State, 543 So. 2d 1289 (Fla. 4th DCA 1989), we reaffirmed our earlier position in Adams v. State, 487 So. 2d 1209 (Fla. 4th DCA 1986), that orders denying motions to mitigate, such as that made here, were not appealable. Our companion courts agree. See Lee v. State, 662 So. 2d 731 (Fla. 2d DCA 1995); Bourjolly v. State, 623 So. 2d 870 (Fla. 3d DCA 1993); Daniel…
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Davis v. State, 852 So. 2d 355 (Fla. 5th DCA 2003)…lem. Unfortunately, we are unable to grant Davis the relief that he apparently deserves because an order denying a motion to modify sentence is not an appeal-able order. See Pace v. State, 776 So. 2d 1035 (Fla. 4th DCA 2001) (citing Adams v. State, 487 So. 2d 1209 (Fla. 4th DCA 1986)). Therefore, although we are constrained to dismiss this appeal, we do so without prejudice to Davis to file an appropriate motion for postconviction relief seeking an appropriate remedy pursuant to Taylor. See Ahedo v. State, 83…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Solem v. Helm, 463 U.S. 277 (U.S. 1983)
- Hallman v. State, 371 So. 2d 482 (Fla. 1979)
- Hallman v. State, 343 So. 2d 912 (Fla. 2d DCA 1977)
- Clark v. State, 414 So. 2d 640 (Fla. 5th DCA 1982)
- State v. Smith, 360 So. 2d 21 (Fla. 4th DCA 1978)
- Parker v. State, 214 So. 2d 632 (Fla. 2d DCA 1968)