STATE OF FLORIDA, PETITIONER,
v.
ROBERTO PASTOR, RESPONDENT
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Double jeopardy claims based on Carawan cannot be applied retroactively on a motion for postconviction relief.
Roberto Pastor was convicted of attempted first-degree murder and unlawful possession of a deadly weapon. He sought postconviction relief, arguing dua…
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McDONALD, Justice.
We have for review Pastor v. State, 536 So. 2d 356 (Fla. 3d DCA 1988), based on express and direct conflict with Harris v. State, 520 So. 2d 639 (Fla. 1st DCA), review denied, 536 So. 2d 244 (Fla.1988). We have jurisdiction, article V, section 3(b)(3), Florida Constitution, and quash Pastor. A jury convicted Roberto Pastor of attempted first-degree murder with a deadly weapon and unlawful possession of a deadly weapon while engaged in a criminal offense.
The trial court sentenced him to seventeen years in state prison for the first offense and five years for the second, to run concurrently. Pastor did not appeal the convictions and sentences. In a motion for postconviction relief, Pastor argued that such dual punishment constituted a double jeopardy violation because the convictions stemmed from a single criminal act and both required the same proof, relying on Carawan v. State, 515 So. 2d 161 (Fla.1987).
The district court reversed the trial court’s denial of the motion. The question thus presented to this Court concerns whether Carawan may be retroactively applied on a motion for postconviction relief under rule 3.850, Florida Rules of Criminal Procedure.
In State v. Glenn, 558 So. 2d 4 (Fla.1990), we held that double jeopardy claims based on Carawan could not be applied retroactively on a postconviction motion. Therefore, we quash the district court’s decision in Pastor, order the district court to reinstate the trial court’s denial of the motion for postconviction relief, and approve Harris.
It is so ordered. EHRLICH, C.J., and OVERTON, SHAW, GRIMES and KOGAN, JJ., concur. BARKETT, J., concurs in result only.
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Gandy v. State, 560 So. 2d 1363 (Fla. 1st DCA 1990)…(Supp.1988), and Clark v. State, 530 So. 2d 519 (Fla. 5th DCA 1988) — but our Florida Supreme Court has recently held that Carawan may not be retroactively applied to post-conviction claims. State v. Glenn, 558 So. 2d 4 (Fla.1990); State v. Pastor, 556 So. 2d 1112 (Fla.1990). Moreover, as this court recently stated in Ferenc v. State, 15 F.L.W. D938 (Fla. 1st DCA Apr. 15, 1990), double jeopardy arguments raised under Carawan are really challenges to convictions, not sentences, and thus are not cognizable unde…
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Benedit v. State, 610 So. 2d 699 (Fla. 3d DCA 1992)…the defendant was entitled to have this constitutionally barred conviction and sentence set aside under Rule 3.850. See Gandy v. State, 560 So. 2d 1363 (Fla. 1st DCA1990); Pastor v. State, 536 So. 2d 356 (Fla. 3d DCA1988), quashed on other grounds, 556 So. 2d 1112 (Fla.1990); Gonzalez-Osorio v. State, 535 So. 2d 644 (Fla. 2d DCA1988), rev. denied, 544 So. 2d 199 (Fla.1989); Zatler v. State, 475 So. 2d 983 (Fla. 3d DCA1985); see also Finley v. State, 394 So. 2d 215 (Fla. 1st DCA1981). Moreover, we conclude tha…
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de Leon v. State, 559 So. 2d 1254 (Fla. 3d DCA 1990)…Florida Supreme Court has expressly ruled that double jeopardy claims based on Carawan do not apply retroactively to post-conviction relief motions. State v. Glenn, 558 So. 2d 4 (Fla.1990); State v. Jensen, 557 So. 2d 23 (Fla.1990); State v. Pastor, 556 So. 2d 1112 (Fla.1990). Accordingly, appellant is not entitled to relief on his double jeopardy claim. Having concluded the other points raised by appellant to be facially insufficient to support the relief sought, the trial court's denial of appellant’s post…
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
- Dion Michael Carawan v. State, 515 So. 2d 161 (Fla. 1987)
- State v. Glenn, 558 So. 2d 4 (Fla. 1990)
- Harris v. State, 520 So. 2d 639 (Fla. 1st DCA 1988)
- Pastor v. State, 536 So. 2d 356 (Fla. 3d DCA 1988)
- State v. Forbes, 536 So. 2d 356 (Fla. 3d DCA 1988)