CALVIN LEE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Calvin Lee appealed the denial of his post-conviction Rule 3.850 motion challenging the constitutionality of habitual offender sentencing enhancements. The court affirmed the denial because Lee failed to adequately allege that he would not have been habitualized absent the challenged statutory amendments.
The trial court properly denied Lee's post-conviction motion because he failed to adequately allege facts showing he would not have been habitualized absent the Ch. 89-280 amendments. The constitutionality argument cannot be considered unless the defendant demonstrates that absent the amendments, he would not have received the habitual offender sentence.
[1] A motion for post-conviction relief must allege facts demonstrating that the defendant is entitled to relief.
[2] A defendant seeking to challenge a sentence based on the unconstitutionality of a statute must allege that the offense was committed during the period the statute was unc…
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Join FLexlaw to unlock all legal intelligence“the constitutionality argument will not be considered if the defendant would have been habitualized regardless of the Ch. 89-280 amendments”
Establishes the key requirement that a defendant must show he would not have been habitualized absent the amendments to raise the constitutionality challenge.
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Join FLexlaw to unlock all legal intelligenceLee pled guilty in May 1991 to sale and delivery of cocaine and received two concurrent 10-year sentences as a habitual felony offender. He committed …
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PER CURIAM.
Calvin Lee has appealed from 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.
In May 1991, Lee pled guilty to and was convicted of the sale and delivery of cocaine. He received two concurrent 10-year terms as an habitual felony offender. On October 1, 1992, Lee filed the instant motion alleging that the sentences were illegal. He pointed out that he committed his crimes in October and November 1990, during the period (October 1, 1989 — May 2, 1991) in which section 775.084, Florida Statutes, as amended by Ch. 89-280, Laws of Florida, was unconstitutional as violative of the single-subject rule of the Florida Constitution. See Johnson v. State, 589 So. 2d 1370 (Fla. 1st DCA 1991), approved State v. Johnson, 616 So. 2d 1 (Fla.1993). The trial judge denied the motion without comment.
In Perez v. State, 606 So. 2d 756 (Fla. 1st DCA 1992), the defendant filed a similar 3.850 motion, but failed to allege that he committed his offense during the period of unconstitutionality stated above. Thus, this court could not determine that he was entitled to consideration of the issue. We affirmed the denial of the motion, but without prejudice to the filing of a motion in the trial court alleging the necessary information. Perez at 757.
In the same vein, the constitutionality argument will not be considered if the defendant would have been habitualized regardless of the Ch. 89-280 amendments. Perez at 757. Those amendments essentially provided that out-of-state convictions could be used to qualify a defendant as an habitual felony offender, and added aggravated battery as a qualifying offense for habitual violent felony offender status. Lee was not sentenced as a violent felony offender, and does not allege that out-of-state convictions were used to qualify him as an habitual offender. Therefore, as in Perez, this court cannot determine that Lee was entitled to consideration of the issue.
We therefore affirm the order herein appealed, without prejudice to the filing of a sworn 3.850 motion which alleges and shows that, absent the amendments, Lee would not have been habitualized.
JOANOS, C.J., and ZEHMER and WEBSTER, JJ„ concur.
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Citator
Cited By
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Corbin v. State, 635 So. 2d 92 (Fla. 1st DCA 1994)…ual offender sentence was in any way produced by the amendments, which allowed habitualization based upon prior out-of-state convictions. Consequently, we cannot determine that appellant was entitled to consideration of this issue. See Lee v. State, 615 So. 2d 232 (Fla. 1st DCA 1993); Perez v. State, 606 So. 2d 756 (Fla. 1st DCA 1992). [*93] We therefore affirm the order herein appealed, without prejudice to the filing of a properly sworn 3.850 motion which alleges and shows that, absent the amendments, appel…
Authorities Cited
- State v. Johnson, 616 So. 2d 1 (Fla. 1993)
- Johnson v. State, 589 So. 2d 1370 (Fla. 1st DCA 1991)
- Perez v. State, 606 So. 2d 756 (Fla. 1st DCA 1992)