GREG EDWARD CUSIC, PETITIONER,
v.
STATE OF FLORIDA, RESPONDENT
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A sentence that was legal when imposed, even if later deemed impermissible due to changes in law, cannot be collaterally attacked under Rule 3.800(a) if it was not based on an incorrect calculation on the sentencing guidelines scoresheet.
Petitioner sought postconviction relief under Rule 3.800(a) to challenge a sentence based on habitual offender status, which was later deemed impermis…
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GRIMES, Justice.
Pursuant to article Y, section 3(b)(3) of the Florida Constitution, we review Cusic v. State, 512 So. 2d 309 (Fla. 2d DCA 1987), because of conflict with Hall v. State, 511 So. 2d 1038 (Fla. 1st DCA 1987).
Contemporaneous with the issuance of the instant opinion, this Court has quashed the opinion of the First District Court of Appeal in Hall. Relying upon McCuiston v. State, 534 So. 2d 1144 (Fla.1988), also issued on this date, we held that a guidelines departure sentence predicated upon habitual offender status can not be collaterally attacked by motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. Hall and McCuiston differ from the instant case only with respect to the fact that Cusic’s motion was filed under Florida Rule of Criminal Procedure 3.800(a), which reads:
A court may at any time correct an illegal sentence imposed by it or an incorrect calculation made by it in a sentencing guidelines scoresheet.
The words “or an incorrect calculation made by it in a sentencing guidelines score-sheet” were added to this rule in State v. Whitfield, 487 So. 2d 1045 (Fla.1986), so as to permit collateral attack if the sentencing guidelines scoresheet was erroneously computed.
Cusic does not complain of an incorrect calculation in his sentencing guidelines scoresheet. While a guidelines departure because of habitual offender status is no longer permissible under Whitehead v. State, 498 So. 2d 863 (Fla.1986), that sentence was legal when it was rendered. Because Whitehead does not have retroactive application, McCuiston, Cusic is not entitled to postconviction relief.
We approve the decision of the Second District Court of Appeal.
It is so ordered.
EHRLICH, C.J., and OVERTON, McDonald, SHAW, BARKETT and KOGAN, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Harvard v. State, 643 So. 2d 712 (Fla. 3d DCA 1994)…see Brintley v. State, 596 So. 2d 1270 (Fla. 2d DCA 1992); Trimble v. State, 511 So. 2d 403 (Fla. 2d DCA 1987). Subsequent to Early the Florida Supreme Court handed down decisions in McCuiston v. State, 534 So. 2d 1144 (Fla.1988) and Cusic v. State, 534 So. 2d 1147 (Fla.1988). For the following reasons we hold that McCuiston and Cusic have, although not expressly stating so, overruled Early. In McCuiston and Cusic the court addressed the following issue: Whether a sentence which was a departure from the recom…
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Gilmore v. State, 534 So. 2d 1149 (Fla. 1988)…and McCuiston differ from the instant case only with respect to the fact that Gilmore’s motion was filed under rule 3.800(a) rather than under rule 3.850 of the Florida Rules of Criminal Procedure. The instant case is controlled by Cusic v. State, 534 So. 2d 1147 (Fla.1988), which was also a case involving a motion seeking the same relief filed under rule 3.800(a). As we explained in Cusic, that rule applies when there was an incorrect calculation in the sentencing guidelines scoresheet or an illegal sentenc…
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Miller v. State, 550 So. 2d 566 (Fla. 1st DCA 1989)…PER CURIAM. AFFIRMED. See McCuiston v. State, 534 So. 2d 1144 (Fla.1988); and Cusic v. State, 534 So. 2d 1147 (Fla.1988). SHIVERS, C.J., and WENTWORTH and WIGGINTON, JJ., concur.…
Authorities Cited
- Whitehead v. State, 498 So. 2d 863 (Fla. 1986)
- State v. Whitfield, 487 So. 2d 1045 (Fla. 1986)
- State v. Hall, 534 So. 2d 1144 (Fla. 1988)
- Hall v. State, 511 So. 2d 1038 (Fla. 1st DCA 1987)
- Cravey v. State, 512 So. 2d 309 (Fla. 2d DCA 1987)