CHARLES SIMMONS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the state circuit court correctly denied the defendant's motions for postconviction relief because the available procedural remedies had lapsed or were inapplicable to the claims presented.
Simmons pled guilty to escape in 1964 and served his sentence. He later sought postconviction relief, claiming ineffective assistance of counsel and a…
The full statement of facts, procedural history, and disposition for this case are member content.
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SHIVERS, Chief Judge.
This appeal is from the denial of a motion for postconviction relief. We affirm.
Simmons pled guilty in 1964 to escape. He was sentenced to eighteen months hard labor; and that sentence has been served. He was a prisoner in Leavenworth federal prison in Kansas when this appeal was filed; but his return address is now in Stillwater, Minnesota — presumably another prison. The escape conviction is somehow affecting Simmons’ present incarceration. Simmons now claims that in 1964 he received ineffective assistance of counsel and his plea was coerced.
Simmons petitioned for a writ of habeas corpus in federal district court. The district court dismissed the claim without prejudice on the ground Simmons had not exhausted state remedies. The district court adopted the magistrate’s suggestion “that at least two procedural remedies are still available: 1) a motion to withdraw guilty plea and 2) motion to correct sentence pursuant to Rule 3.800_”
Simmons filed the motions suggested by the federal court in the Florida circuit court, and he incorporated a petition for writ of habeas corpus. The circuit court denied the motions and petition. The court said (1) the only procedures to withdraw a guilty plea are provided by Rules 3.170(f) and 3.850. Rule 3.170(f) must be invoked prior to sentencing, and the time to file a 3.850 motion has lapsed. (2) A Rule 3.800 motion may only be used to correct an illegal sentence given without statutory authority. Simmons did not assert the trial court sentenced him without statutory authority. (3) The circuit court is without power to issue a writ of habeas corpus for a prisoner who is not in the custody of the state of Florida.
The circuit court’s analysis is sound, and we affirm. Having carefully examined the record in this case, we also note that in our view Simmons has exhausted his state remedies.
ERVIN and WOLF, JJ., concur.
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Skidmore v. State, 688 So. 2d 1014 (Fla. 3d DCA 1997)…draw the plea in the trial court. Brown v. State, 661 So. 2d 95 (Fla. 4th DCA 1995), review denied, 668 So. 2d 602 (Fla.1996); Barnes v. State, 643 So. 2d 83 (Fla. 3d DCA 1994); Gainer v. State, 590 So. 2d 1001 (Fla. 1st DCA 1991); Simmons v. State, 579 So. 2d 874 (Fla. 1st DCA 1991). As stated above, this 3.850 is untimely. But even if the defendant had brought a timely motion and was successful in withdrawing his plea, the state would be permitted to reinstate all of the original charges and take him to tri…
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Pace v. State, 662 So. 2d 1001 (Fla. 1st DCA 1995)…ssue relates to the sentencing court’s failure to comply with Florida Rule of Criminal Procedure 3.670. Appellant failed to allege facts demonstrating that this final issue is a matter cognizable pursuant to a Rule 3.800(a) motion. Simmons v. State, 579 So. 2d 874 (Fla. 1st DCA 1991) (Rule 3.800 motion may be used only to correct an illegal sentence given without statutory authority). AFFIRMED in part, REVERSED in part, and REMANDED with directions. BOOTH and MINER, JJ., concur.…
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Royce Glenn Harper v. State, 632 So. 2d 104 (Fla. 1st DCA 1994)…s Judge v. State, 596 So. 2d 73 (Fla. 2d DCA), review denied, 613 So. 2d 5 (Fla.1992); Rouse v. State, 601 So. 2d 281 (Fla. 1st DCA), review denied, 604 So. 2d 487 (Fla.1992); Kelly v. State, 599 So. 2d 727 (Fla. 1st DCA 1992); and Simmons v. State, 579 So. 2d 874 (Fla. 1st DCA 1991). The state’s reliance on the above cases is misplaced, in that [*105] none of them imply a Karchesky error raised in a 3.800(a) motion. 'We agree with the Second District that the Category 2 scoresheet involved in the instant cas…
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