NEAL BENJAMIN IVEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a challenge to an habitual offender sentence based on lack of written notice is cognizable under Florida Rule of Criminal Procedure 3.850.
Appellant sought post-conviction relief, alleging his habitual offender sentence was illegal due to the State's failure to provide the requisite writt…
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PER CURIAM.
Neal B. Ivey appeals the summary denial of his motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850.
In his motion, appellant alleges that his habitual offender sentence is illegal because he did not receive the requisite written notice that the state was seeking an enhanced penalty. § 775.084(3)(b), Fla.Stat. (1983). The trial judge denied the motion on the ground that the issue was not subject to collateral attack by motion for post-conviction relief.
This court ruled to the contrary in Grubbs v. State, 412 So. 2d 27 (Fla. 2d DCA 1982), where we found that the same challenge to an habitual offender sentence could be raised by a motion for post-conviction relief under rule 3.850.
Appellant has already conceded that his remaining point is without merit.
Accordingly, we reverse the trial court’s summary denial of appellant’s motion and remand the case to the trial court for further consideration of the habitual offender issue. The trial court should either conduct an evidentiary hearing or support its summary denial by attaching sufficient portions of the record which conclusively show that appellant is not entitled to relief. To obtain further review, either aggrieved party must appeal the new ruling of the trial court.
GRIMES, A.C.J., and CAMPBELL and SCHOONOVER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Judge v. State, 596 So. 2d 73 (Fla. 2d DCA 1991)…be raised in a motion to correct an illegal sentence. The trial court did not attach the plea agreement or the transcripts of the plea and sentencing hearings to its order. In Grubbs v. State, 412 So. 2d 27 (Fla. 2d DCA 1982), and in Ivey v. State, 500 So. 2d 730 (Fla. 2d DCA 1987), this court ruled that similar allegations could be raised by a motion for postconviction relief. Because the allegations, if true, would entitle appellant to relief from an illegal sentence, the allegations are also the proper su…1 / 3
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Massey v. State, 589 So. 2d 336 (Fla. 5th DCA 1991)…a motion for post-conviction relief. If failure to give advance written notice is only a procedural due process violation, as the majority contends, Grubbs could not have raised this issue in his motion for post-conviction relief. See Ivey v. State, 500 So. 2d 730 (Fla.2d DCA 1987). . It should be noted that Roberts and Rowe, upon which the majority rely, were decided by the second district, the same court that decided Grubbs. . See § 921.001(6), Fla.Stat. (1989); Fla. R.Crim.P. 3.701(d)(ll).…
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State v. Duffer, 509 So. 2d 1326 (Fla. 2d DCA 1987)…de that the absence of a scoresheet from the record on appeal is harmless error because one was prepared and presented to the trial judge for his consideration at sentencing. See Percival v. State, 506 So. 2d 66 (Fla. 2d DCA 1987); Whistin v. State, 500 So. 2d 730 (Fla. 2d DCA 1987); Ford v. State, 474 So. 2d 250 (Fla. 2d DCA 1985); Davis v. State, 461 So. 2d 1361 (Fla. 2d DCA), review denied, 471 So. 2d 43 (Fla.1985). For the reasons stated below, we agree that the reasons cited by the trial court to suppor…
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- Grubbs v. State, 412 So. 2d 27 (Fla. 2d DCA 1982)