ROBERT K. WALL, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Court affirmed denial of habeas corpus petition where appellant, incarcerated in New Mexico, failed to show his sentence was enhanced by the Florida conviction he sought to challenge, thus lacking the custody requirement under Rule 3.850.
A trial court lacks jurisdiction under Rule 3.850 to consider a habeas petition when the petitioner is incarcerated in another state and does not contend that his out-of-state sentence was enhanced by the Florida conviction being challenged.
[1] A petitioner seeking post-conviction relief under Rule 3.850 need not be in custody under the sentence being attacked if the sentence he is serving was enhanced by the co…
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Join FLexlaw to unlock all legal intelligenceRobert Wall filed a motion for post-conviction relief/habeas corpus petition while incarcerated in New Mexico. The trial court summarily denied the pe…
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WIGGINTON, Judge.
Robert Wall appeals from the order of the trial court denying his petition for writ of habeas corpus addressed by the court as a motion for post-conviction relief. We affirm.
In summarily denying the motion, the trial court stated that the petition showed the court to be without jurisdiction to grant relief. We can only assume from the record that the trial court was of the opinion it did not have jurisdiction due to the fact that appellant had served his sentence and was no longer incarcerated in the state of Florida, although, the record shows that appellant at the time he filed his motion was incarcerated in the state of New Mexico. Rule 3.850, Florida Rules of Criminal Procedure, contemplates that the prisoner seeking relief be “in custody under sentence of ⅜ court established by the laws of Florida claiming the right to be released....” For purposes of the rule, the movant need not be in custody under the sentence being attacked where the movant contends the sentence he is serving was enhanced by the conviction he seeks to have set aside. See State v. Reynolds, 238 So. 2d 598 (Fla.1970); Weir v. State, 319 So. 2d 80 (Fla.2d DCA 1975); Wilcox v. State, 267 So. 2d 15 (Fla. 1st DCA 1972). However, appellant has made no such contention in the instant case and the record does not reflect that his New Mexico sentence was enhanced by his Florida conviction. Consequently, the trial court did not have jurisdiction to consider appellant’s petition.
AFFIRMED.
ERVIN and THOMPSON, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Bennie McARTHUR v. State, 597 So. 2d 406 (Fla. 1st DCA 1992)…le of Criminal Procedure 3.850, a prisoner seeking post-conviction relief need not be in custody under the sentence attacked, provided he contends “the sentence he is serving was enhanced by the conviction he seeks to have set aside.” Wall v. State, 525 So. 2d 486, 487 (Fla. 1st DCA 1988). See also State v. Reynolds, 238 So. 2d 598 (Fla.1970). Since appellant in this case has not alleged that the challenged battery conviction is being used to enhance his current sentence, he has failed to satisfy the threshol…
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Bannister v. State, 606 So. 2d 1247 (Fla. 5th DCA 1992)…annister acknowledges that his sentence ended in 1980, Florida courts have held that the custody requirement of Rule 3.850 is met if a defendant’s prior judgment and completed sentence is used to enhance a current sentence. See, e.g., Wall v. State, 525 So. 2d 486 (Fla. 1st DCA 1988); Shell v. State, 501 So. 2d 1332 (Fla. 2d DCA 1987). However, none of the opinions in those cases indicate that the 3.850 motions were filed after the expiration of the two-year statute of limitations, and we will not create a fo…
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Nunez v. State, 683 So. 2d 208 (Fla. 3d DCA 1996)…PER CURIAM. Affirmed. Novaton v. State, 634 So. 2d 607 (Fla.1994); State v. Sawko, 624 So. 2d 751 (Fla. 5th DCA 1993); Dean v. State, 580 So. 2d 808 (Fla. 3d DCA 1991); Wall v. State, 525 So. 2d 486 (Fla. 1st DCA 1988).…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Madison Lee Reynolds, 238 So. 2d 598 (Fla. 1970)
- Weir v. State, 319 So. 2d 80 (Fla. 2d DCA 1975)
- Wilcox v. State, 267 So. 2d 15 (Fla. 1st DCA 1972)