CALVIN B. LOWE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that alleged sentencing guidelines departure errors must be raised on direct appeal and cannot be considered in a motion for post-conviction relief.
Calvin Lowe was arrested and later pled guilty to several charges. He sought post-conviction relief, arguing violations of the speedy trial rule and e…
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PER CURIAM.
Calvin Lowe appeals an order denying his motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. We affirm.
Lowe argued that his conviction violated the speedy trial rule. He was arrested on April 13, 1985. He pled guilty on October 29, 1985 to a three count information charging first degree burglary, kidnapping, and grand theft, and was sentenced on February 3, 1986 to thirty-five years in prison. At no time did Lowe or his counsel file a demand for speedy trial or a motion for discharge nor did Lowe appeal his conviction. The record attached to the circuit judge’s order denying relief shows Lowe requested and received a 28-day continuance from July 1 to July 29, 1985 for the purpose of obtaining a pre-sentence investigation report. Thus, Lowe’s plea was entered and accepted within the 175 days from arrest to plea permitted by the rule. Fla.R.Crim.P. 3.191.
Lowe also alleged that the trial judge erroneously departed from the sentencing guidelines. Lowe said his guidelines scoresheet showed a maximum guidelines sentence of twelve years based on a total of 264 points, 69 of which resulted from his prior convictions. Lowe alleged the trial judge departed from the guidelines sentence by sentencing Lowe to 35 years based on his prior record. Lowe argued this was error since his prior convictions had already been included in determining his maximum guidelines sentence, citing Hendrix v. State, 475 So. 2d 1218 (Fla.1985). But we have repeatedly held that alleged guidelines departure errors must be raised on appeal and cannot be considered on a motion under rule 3.850. Rowe v. State, 496 So. 2d 857 (Fla. 2d DCA 1986); Wahl v. State, 460 So. 2d 579 (Fla. 2d DCA 1984). But see Watkins v. State, 498 So. 2d 576 (Fla. 3d DCA 1986).
Affirmed.
DANAHY, C.J., and RYDER and FRANK, JJ., concur.
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Early v. State, 516 So. 2d 24 (Fla. 3d DCA 1987)…be corrected either upon a post-conviction motion to correct sentence under Fla.R.Crim. P. 3.800(a) or a post-conviction motion to vacate sentence under Fla.R.Crim.P. 3.850. Watkins v. State, 498 So. 2d 576 (Fla. 3d DCA 1986); contra Lowe v. State, 501 So. 2d 712 (Fla. 2d DCA 1987); Carter v. State, 491 So. 2d 1288 (Fla. 1st DCA 1986); Wahl v. State, 460 So. 2d 579 (Fla. 2d DCA 1984). We, accordingly, reverse the order under review and remand the cause to the trial court with directions to set aside the un…
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Moses v. State, 538 So. 2d 473 (Fla. 5th DCA 1989)…rt denied her motion and she appealed. Because this court affirmed appellant’s sentence on direct appeal, she may not collaterally attack the trial court’s reasons for departure. See Bailey v. State, 504 So. 2d 429 (Fla. 2d DCA 1987); Lowe v. State, 501 So. 2d 712 (Fla. 2d DCA 1987); Rowe v. State, 496 So. 2d 857 (Fla. 2d DCA 1986); Wahl v. State, 460 So. 2d 579 (Fla. 2d DCA 1984). But see Early v. State, 516 So. 2d 24 (Fla. 3d DCA 1987); Watkins v. State, 498 So. 2d 576 (Fla. 3d DCA 1986), appeal after reman…
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Bailey v. State, 504 So. 2d 429 (Fla. 2d DCA 1987)…Florida Rule of Criminal Procedure 3.850. We affirm the action of the trial court. This court has held that alleged guidelines departure errors must be raised by appeal and cannot be considered on a motion for post-conviction relief. Lowe v. State, 501 So. 2d 712, (Fla. 2d DCA 1987); Rowe v. State, 496 So. 2d 857 (Fla. 2d DCA 1986); Wahl v. State, 460 So. 2d 579 (Fla. 2d DCA 1984). The third district, however, has recently ruled otherwise. Watkins v. State, 498 So. 2d 576 (Fla. 3d DCA 1986). Affirmed. SC…
Authorities Cited
- Hendrix v. State, 475 So. 2d 1218 (Fla. 1985)
- Rowe v. State, 496 So. 2d 857 (Fla. 2d DCA 1986)
- Wahl v. State, 460 So. 2d 579 (Fla. 2d DCA 1984)
- Marianela Caceres v. Milton, 498 So. 2d 576 (Fla. 3d DCA 1986)
- Watkins v. State, 498 So. 2d 576 (Fla. 3d DCA 1986)