CHARLES EDWARD DAY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Charles Edward Day appeals the summary denial of his post-conviction relief motion, arguing his habitual offender sentences were illegal or imposed based on an involuntary plea because the state failed to provide written notice of its intent to seek enhanced sentences in two of the three cases. The court affirmed the denial, holding that the lack of written notice did not render the sentences illegal where defense counsel was aware of the state's intent and neither counsel nor defendant objected.
The court held that the sentencing of the defendant as a habitual offender without written notice in cases 89-3382 and 89-3383 did not render the sentences illegal under the facts presented, where defense counsel was aware of the state's intent and neither counsel nor the defendant objected at sentencing.
[1] A defendant waives the right to written notice of intent to seek enhanced sentencing under the habitual offender statute by failing to object to the lack of notice at sen…
[2] A guilty plea entered after the state has provided written notice of intent to seek habitual offender status in one case does not render subsequent habitual offender sent…
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Join FLexlaw to unlock all legal intelligence“the sentencing of the defendant as a habitual offender without written notice in cases 89-3382 and 89-3383 did not make the sentences illegal”
The court's holding that lack of written notice does not render habitual offender sentences illegal where counsel was aware and did not object
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Join FLexlaw to unlock all legal intelligenceDay was convicted after jury trial of carrying a concealed firearm and possession of a firearm by a convicted felon in case 88-9855. The state provide…
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GRIFFIN, Judge.
Charles Edward Day appeals the summary denial of his motion for post-convietion relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm.
After jury trial, Day was found guilty in circuit court case number 88-9855 of carrying a concealed firearm and possession of a firearm by a convicted felon. The state gave Day written notice of the state’s intent to seek habitual offender status. At the scheduled sentencing in the above case, the prisoner asked to withdraw his plea of not guilty and plead guilty to delivery of cocaine in two other cases pending in circuit court (cases numbered 89-3382 and 89-3383). Day was then sentenced as a habitual offender to four concurrent thirty year prison terms. On appeal, this court corrected Day’s sentence on the concealed firearm count but affirmed in all other respects. Day v. State, 560 So. 2d 428 (Fla. 5th DCA 1990).
In 1992, Day filed his 3.850 motion, raising four grounds for relief. In grounds I and IV, Day contended that his sentences in Cases Numbered 89-3382 and 89-3383 were illegal or his plea involuntary because the state failed to give him or his counsel written notice before sentencing that the state would seek enhanced sentences under the habitual offender statute in those cases.1
The lower court summarily denied the 3.850 motion in a three page opinion. With respect to grounds I and IV, the court referenced the sentencing transcript, which showed that the state had properly filed its notice to seek an enhanced sentence in Case No. 88-9855. Upon Day’s tender of a guilty plea in the additional two cases, neither counsel nor Day objected to the lack of written notice. At the sentencing, defense counsel expressed awareness that the state would seek an enhanced sentence as to the other two cases as well. The court thereupon accepted the pleas, qualified the prisoner as a habitual offender and pronounced habitual offender sentences on all counts.
We agree with the lower court that, under these facts, the sentencing of the defendant as a habitual offender without written notice in cases 89-3382 and 89-3383 did not make the sentences illegal. Massey v. State, 589 So. 2d 336 (Fla. 5th DCA 1991), jurisdiction accepted, 598 So. 2d 77 (Fla.1992).
AFFIRMED.
DAUKSCH and COBB, JJ., concur. . This issue had not been raised on appeal.
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Citator
Cited By
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Alexander v. State, 667 So. 2d 830 (Fla. 5th DCA 1995)…[*831] PER CURIAM. AFFIRMED. See Day v. State, 604 So. 2d 27 (Fla. 5th DCA), rev. denied, 609 So. 2d 40 (Fla.1992). PETERSON, C.J., and W. SHARP and GOSHORN, JJ., concur.…
Authorities Cited
- Massey v. State, 589 So. 2d 336 (Fla. 5th DCA 1991)
- Spatcher v. State, 560 So. 2d 428 (Fla. 5th DCA 1990)