JOHN S. JOHNSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Trial court erred in retaining jurisdiction over one-third of a guideline sentence under section 947.16, and the issue may be raised by postconviction motion; the court must determine on remand whether the sentence is a guideline sentence and strike the retention provision if so.
A trial court lacks power to retain jurisdiction over a portion of a guideline sentence under section 947.16, Florida Statutes, and this issue may be raised by motion for postconviction relief.
[1] A trial court is without power to retain jurisdiction under section 947.16, Florida Statutes, over a portion of a guideline sentence, and this issue may be raised by moti…
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Join FLexlaw to unlock all legal intelligenceJohn Johnson received a 60-year prison sentence with the trial court retaining jurisdiction for one-third of the sentence pursuant to section 947.16, …
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PER CURIAM.
John Johnson appeals from the summary denial of his motion to correct sentence. He alleges that the trial court erred in retaining jurisdiction for one third of his 60-year prison sentence pursuant to section 947.16, Florida Statutes (1985). Specifically, Johnson claims that the court was without power to retain jurisdiction because this was a guideline sentence. Williams v. State, 470 So. 2d 864 (Fla. 2d DCA 1985). We are of the opinion that this issue may properly be raised either on appeal or by a motion for postconviction relief. Styles v. State, 465 So. 2d 1369 (Fla. 2d DCA 1985); McClellan v. State, 434 So. 2d 1 (Fla. 2d DCA 1983). Upon remand the trial court should determine whether or not Johnson’s sentence is a guideline sentence. If so it should simply strike the retention provision. If, on the other hand, the trial court again denies the motion it should attach evidence from the files and records which clearly demonstrates that Johnson is not entitled to relief. Johnson then must file a notice of appeal within thirty days to obtain further appellate review.
Johnson also claims that the trial court departed from the recommended guideline sentence for improper reasons. This court has consistently held that this sort of issue should be raised, if at all, on direct appeal. Rowe v. State, 496 So. 2d 857 (Fla. 2d DCA 1986). The trial court properly denied relief on this ground.
Affirmed in part, reversed in part.
RYDER, A.C.J., and SCHOONOVER and FRANK, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Trimble v. State, 511 So. 2d 403 (Fla. 2d DCA 1987)…support of its decision to depart from the recommended guidelines sentence. We have consistently held that invalid departure criteria must be contested, if at all, on direct appeal rather than in a motion for postconviction relief. Johnson v. State, 502 So. 2d 1352 (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). Affirmed. SCHEB, A.C.J., and SCHOONOVER and HALL, JJ., concur.…
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Rowe v. State, 523 So. 2d 620 (Fla. 2d DCA 1988)…Even so we do not consider Shull to be precedent for abandoning our consistent position that invalid departure criteria must be attacked, if at all, on direct appeal. See, e.g., Trimble v. State, 511 So. 2d 403 (Fla. 2d DCA 1987); Johnson v. State, 502 So. 2d 1352 (Fla. 2d DCA 1987); Rowe v. State, 496 So. 2d 857 (Fla. 2d DCA 1986). These cases, in turn, are grounded in long-established precedent to the effect the postcon-viction procedures set forth in rule 3.850 are intended neither as a second appeal nor a…
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Angelo v. DiSAVOIA, 522 So. 2d 84 (Fla. 2d DCA 1988)…for prior record. The trial judge may have considered certain unscorable offenses when deciding to depart from the guidelines, but if so, and if DiSavoia felt this was improper, he was required to argue the matter on direct appeal. Johnson v. State, 502 So. 2d 1352 (Fla. 2d DCA 1987). As to the remaining issues raised by DiSavoia’s pleading we concur with the tri [*85] al court that “no cognizable claim for relief has been set forth.” Affirmed. CAMPBELL, A.C.J., and SCHOONOVER and HALL, JJ., concur. . DiSa…
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
- Rowe v. State, 496 So. 2d 857 (Fla. 2d DCA 1986)
- Williams v. State, 470 So. 2d 864 (Fla. 2d DCA 1985)
- Styles v. State, 465 So. 2d 1369 (Fla. 2d DCA 1985)
- McCLELLAN v. State, 434 So. 2d 1 (Fla. 2d DCA 1983)