TIMOTHY JOHNSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a defendant challenging habitual offender sentencing based on a statute's constitutionality must show they would not have been habitualized under the pre-amendment statute.
Timothy Johnson was convicted of forgery, credit card fraud, and burglary and sentenced as an habitual offender. He filed a motion for post-conviction…
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PER CURIAM.
Timothy Johnson has appealed an order of the trial court summarily denying his motion for post-conviction relief pursuant to Rule 3.850, Florida Rules of Criminal Procedure. We affirm.
Johnson pled guilty to and was convicted of forgery, credit card fraud and burglary, and was sentenced as an habitual offender in February 1991. He filed the instant motion in January 1992, alleging that he could not properly be sentenced as an habitual offender in that section 775.084, as amended by Ch. 89-280, Laws of Florida, violated the single-subject rule of the Florida Constitution. See Johnson v. State, 589 So. 2d 1370 (Fla. 1st DCA 1991). The trial court denied the motion, finding that review of Johnson was pending in the Florida Supreme Court and thus the case was not yet final.
The motion was correctly denied. The constitutionality argument raised by Johnson will not be considered if habitualization would have occurred under the pre-amendment statute. King v. State, 585 So. 2d 1199 (Fla. 1st DCA 1991). Johnson does not allege in his motion nor can we determine from his petition that he would not have been habitualized under the pre-amendment statute. Therefore, he states no grounds for relief on this issue, and the motion was properly denied.
Affirmed.
JOANOS, C.J., and BOOTH and MINER, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Perez v. State, 606 So. 2d 756 (Fla. 1st DCA 1992)…motion fails to allege the nature of his offense and the date of its commission, we cannot determine that he is entitled to raise the single-subject constitutionality issue. See Robinson v. State, 603 So. 2d 50 (Fla. 1st DCA 1992); Johnson v. State, 603 So. 2d 51 (Fla. 1st DCA 1992) (the single-subject constitutionality argument will not be considered if the defendant would have been habitualized regardless of the affected amendments). Our affir-mance is without prejudice to the filing in the trial court of…
Authorities Cited
- Johnson v. State, 589 So. 2d 1370 (Fla. 1st DCA 1991)
- Bush Wade Holland v. State, 585 So. 2d 1199 (Fla. 1st DCA 1991)