WILLIAM KENDALL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Kendall appealed the trial court's denial of his Rule 3.850 post-conviction motion challenging his conviction and sentence for attempted sexual battery. The court affirmed most grounds but reversed on the issue of whether the trial court made adequate findings of fact when enhancing his sentence as a habitual offender, requiring the trial court on remand to either attach supporting record portions or conduct an evidentiary hearing on the sentencing issue.
The court affirmed the denial of grounds 4(a) through (e) but reversed and remanded ground 4(f), holding that challenges to the legality of sentencing are appropriate for collateral attack via Rule 3.850 motion and that technical notary defects do not warrant summary rejection. On remand, the trial court must attach supporting record portions showing the sentencing was proper or conduct an evidentiary hearing.
[1] A motion for post-conviction relief is an appropriate vehicle for challenging the legality of a sentence imposed under the Habitual Offender Act.
[2] A trial court's summary denial of a motion for post-conviction relief must be accompanied by attachments of the record supporting the denial, or a demonstration of legal…
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Join FLexlaw to unlock all legal intelligence“This type of challenge has been acknowledged as appropriate for a collateral attack by rule 3.850 motion.”
Establishes that sentencing legality challenges are cognizable in Rule 3.850 proceedings
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Join FLexlaw to unlock all legal intelligenceKendall was convicted of attempted sexual battery and sentenced with enhancement under the Habitual Offender Act. The trial court stated it would enha…
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PER CURIAM.
This is an appeal from a trial court order which denied rehearing from an earlier order in which the court denied appellant’s motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Appellant raised specific challenges to his conviction and sentence for attempted sexual battery in grounds 4(a) through (f) of his motion, and we ordered a response and reply, limited to ground 4(f). We affirm as to the challenges raised in 4(a) through (e). As to ground 4(f), we reverse and remand with direction to proceed in accordance herewith.
In (f), appellant alleges denial of due process and presumably illegal sentencing for failure of the court to make specific findings of fact when enhancing his sentence under the Habitual Offender Act. This type of challenge has been acknowledged as appropriate for a collateral attack by rule 3.850 motion. See, e.g., Basilisco v. State, 593 So. 2d 588 (Fla. 1st DCA 1992); Debose v. State, 580 So. 2d 638 (Fla. 5th DCA 1991).
Appellant argues that the trial court simply made a general statement that because of his record, the seriousness of the offense and to protect the public, his sentence would be enhanced. Taking judicial notice of the appellant’s direct appeal file in this court, we see that his sentence refers to a separate order or findings in the court record supporting his classification as an habitual offender. However, the full record of the proceedings is no longer in this court, as the appellate file is closed. Thus, we cannot review the record to determine whether appellant’s claim contains merit.
The trial court order denied relief in part because the notary section of the motion did not comport with the technical requirements of section 117.05(16), Florida Statutes (Supp.1992), which require the notary to state whether the affiant was personally known to him or her, or whether the affiant produced identification. However, in Crotty v. State, 568 So. 2d 1328 (Fla. 4th DCA 1990), this court rejected a similar challenge to a rule 3.850 motion’s notary section. We find no case law support for the trial court’s summary rejection of the motion for this reason.
The trial court also denied relief on the grounds that the claims in the motion should have been raised on direct appeal. However, that reasoning does not apply to challenges to the legality of sentencing, which is the challenge in 4(f). Vause v. State, 502 So. 2d 511 (Fla. 1st DCA), rev. denied, 511 So. 2d 1000 (Fla.1987).
The state’s response filed in this court argued that appellant’s rule 3.850 motion was untimely, but that is refuted by the record. The state also attempted to refute the challenge to the habitual offender sentence by making references to the record not attached to the trial court’s order of summary denial, and argued application of State v. Rucker, 613 So. 2d 460 (Fla.1993). However, without attachment of supporting portions of the record to the trial court order, these attempts must fail. The order of summary denial should have contained record attachments, or demonstrated why appellant’s sentencing challenges were legally insufficient for reasons other than the notary section of the motion.
On remand, the trial court is directed to attach those portions of the record showing that appellant is not entitled to relief under ground 4(f) or to conduct an evidentiary hearing solely on that sentencing issue.
GLICKSTEIN, C.J., and HERSEY and DELL, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Eldridge A. McCRAY v. State, 633 So. 2d 561 (Fla. 4th DCA 1994)…should have contained those portions of the record necessary to support the trial court’s order. The state’s supplementation of the order with portions of the record is insufficient to support the trial court’s summary denial. See Kendall v. State, 619 So. 2d 515 (Fla. 4th DCA 1993) and McGrady v. State, 591 So. 2d 270 (Fla. 4th DCA 1991). Accordingly, we remand to the trial court with instructions to attach those portions of the record supporting its order. REVERSED AND REMANDED. DELL, C.J., and GUNTH…
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Thomas v. State, 686 So. 2d 699 (Fla. 4th DCA 1996)…otion was not raised in the former motion. We disagree with appellant’s argument that the trial court should have considered the merits of the motion despite appellant’s noncompliance with these subsections of rule 3.850. Compare Kendall v. State, 619 So. 2d 515 (Fla. 4th DCA 1993) (failure of notary section of motion to comport with technical requirements of notary statute not basis for summary denial of 3.850 relief) with Brown v. State, 661 So. 2d 95 (Fla. 4th DCA 1995) (trial court properly denied motio…
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Sheffield v. State, 903 So. 2d 1009 (Fla. 4th DCA 2005)…relief does not show the rationale used by the court to summarily deny the motion, nor does it attach any record excerpts that specifically address the claims raised in the motion. See Anderson v. State, 627 So. 2d 1170 (Fla.1993); Kendall v. State, 619 So. 2d 515 (Fla. 4th DCA 1993). Our supreme court has consistently described the lower court’s duties when denying such a motion as “a trial court must either state its rationale in its decision or attach those specific parts of the record that refute each cla…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Rucker, 613 So. 2d 460 (Fla. 1993)
- DeVITTO v. State, 580 So. 2d 638 (Fla. 1st DCA 1991)
- Ozell Debose, Jr. v. State, 580 So. 2d 638 (Fla. 5th DCA 1991)
- Basilisco v. State, 593 So. 2d 588 (Fla. 1st DCA 1992)
- Vause v. State, 502 So. 2d 511 (Fla. 1st DCA 1987)
- Kendrick Crotty v. State, 568 So. 2d 1328 (Fla. 4th DCA 1990)