DARRYL MONTANA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that claims of insufficient evidence and hearsay admission are procedurally barred on post-conviction review, and ineffective assistance of counsel was not sufficiently alleged. However, the claim of an illegal sentence was not addressed by the trial court and warrants further review.
Darryl Montana was convicted of second-degree murder and filed a motion for post-conviction relief alleging insufficiency of evidence, hearsay, ineffe…
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PER CURIAM.
Darryl Montana has appealed an order of the trial court summarily denying his motion for post-conviction relief filed pursuant to Rule 3.850, Florida Rules of Criminal Procedure. We affirm in part and reverse in part.
In February 1989, Montana was convicted of second-degree murder. His conviction was affirmed without opinion. Montana v. State, 559 So. 2d 1141 (Fla. 1st DCA 1990). Montana filed the instant motion in August 1991, alleging insufficiency of the evidence, erroneous admission of hearsay, ineffective assistance of counsel, and that his sentence was illegal because the trial court exceeded the recommended guidelines range without providing written reasons. The trial court summarily denied the motion, finding that “most” of the issues raised by Montana could and should have been raised on direct appeal, and that no legal basis for ineffective assistance of counsel had been stated. The illegality of Montana’s sentence was not specifically addressed.
We agree with the trial court that the allegations of insufficiency of the evidence and the erroneous admission of hearsay could have been raised on Montana’s direct appeal, and hence are improperly raised in a Rule 3.850 motion. We also find, as did the trial court, that Montana has not stated a legally sufficient basis for his allegation of ineffective assistance of counsel. However, although his allegation of an illegal sentence, if true, would entitle him to relief, the trial court did not address this allegation in its order. We therefore affirm the order appealed as to all grounds except that alleging an illegal sentence. As to that issue, we reverse and remand either for attachment of those portions of the files and records conclusively showing that Montana is not entitled to relief, or for further proceedings under Rule 3.850. Affirmed in part, reversed in part arid remanded with directions.
JOANOS, C.J., and SMITH and BARFIELD, JJ., concur.
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Stephon W. Boykin v. State, 725 So. 2d 1203 (Fla. 2d DCA 1999)…he alleges was presented against him at trial. The trial court denied this claim, stating that Boykin was attempting to raise in a postconviction motion matters that should have been raised on a direct appeal in contravention of Montana v. State, 597 So. 2d 334 (Fla. 1st DCA 1992). It appears the trial court misunderstood that Boykin was required to argue the sufficiency of the evidence in his motion in order to establish he had suffered prejudice from counsel’s alleged deficiency. Rather than attempting t…
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Clift v. State, 43 So. 3d 778 (Fla. 1st DCA 2010)…Even had Appellant not pled guilty to the offense, the claim of insufficient evidence to sustain a conviction is an issue that could have and should have been raised on direct appeal. Smith v. State, 445 So. 2d 323, 325 (Fla.1983); Montana v. State, 597 So. 2d 334 (Fla. 1st DCA 1992) (holding that allegation of insufficiency of evidence could have been raised on direct appeal and was improperly raised in motion for postconviction relief). We therefore find Appellant’s appeal to be frivolous, and write to refe…
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Jones v. State, 699 So. 2d 809 (Fla. 1st DCA 1997)…appellant’s challenge to the sufficiency of evidence used to convict him of a violation of probation is an issue for direct appeal, and therefore not cognizable under 3.850. See Williams v. State, 642 So. 2d 67 (Fla. 1st DCA 1994); Montana v. State, 597 So. 2d 334 (Fla. 1st DCA 1992). BARFIELD, C.J., and DAVIS and BENTON, JJ., concur.…
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