ROY FELIX DUENAS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 2d DCA | 1994-05-06
No. 94-00428
RYDER, A.C.J., and PARKER and FULMER, JJ., concur.
636 So. 2d 549 Florida District Court of Appeal, Second District (1994) Positive Treatment
Cited by 6 cases
Topics
Unconstitutional Statute Sentence Enhancement Postconviction Relief

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Opinion of the Court
PER CURIAM.

[*550] PER CURIAM.

Roy Felix Dueñas appeals the summary denial of his motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Appellant claims that two of his prior convictions were obtained under a statute which has been declared unconstitutional. The basis of the trial court’s denial* of the motion was that the appellant was not eligible for postconviction relief because he was no longer in custody on the charges. However, the convictions which appellant attacks were used to enhance the sentence he is currently serving. Thus, appellant is in custody for purposes of rule 3.850. Shell v. State, 501 So. 2d 1332 (Fla. 2d DCA 1987).

Nevertheless, we affirm the denial of appellant’s motion because the appellant previously raised the same issue in a prior motion for postconviction relief which the trial court considered and denied because the appellant was not convicted under the unconstitutional provisions of the statute. That decision was affirmed by this court. Duenas v. State, 605 So. 2d 77 (Fla. 2d DCA 1992).

Affirmed.

RYDER, A.C.J., and PARKER and FULMER, JJ., concur.

Cases With Similar Vibessemantic neighbors from the corpus

Citator

Cited By

  • Bates v. State, 887 So. 2d 1214 (Fla. 2004)
    …But if a defendant’s prior conviction is used to enhance a current sentence, the defendant is considered to be in custody for purposes of post-conviction relief. See Bannister v. State, 606 So. 2d 1247 (Fla. 5th DCA 1992). See also Duenas v. State, 636 So. 2d 549 (Fla. 2d DCA 1994); McArthur v. State, 597 So. 2d 406 (Fla. 1st DCA 1992). Since Mr. Howarth is challenging the validity of his 1987 convictions in an effort to avoid enhancement of his current sentence, he is in custody for purposes of post-convict…
  • Howarth v. State, 673 So. 2d 580 (Fla. 5th DCA 1996)
    …But if a defendant’s prior conviction is used to enhance a current sentence, the defendant is considered to be in custody for purposes of post-conviction relief. See Bannister v. State, 606 So. 2d 1247 (Fla. 5th DCA 1992). See also Dueñas v. State, 636 So. 2d 549 (Fla. 2d DCA 1994); McArthur v. State, 597 So. 2d 406 (Fla. 1st DCA 1992). Since Mr. Howarth is challenging the validity of his 1987 convictions in an effort to avoid enhancement of his current sentence, he is in custody for purposes of post-convict…
  • State v. Evans, 705 So. 2d 631 (Fla. 3d DCA 1998)
    …addressed such as would result in the prisoner’s receiving credit in some degree on the current confinement.” Rose v. State, 235 So. 2d 353, 354 (Fla. 3d DCA 1970); see also Howarth v. State, 673 So. 2d 580, 582 (Fla. 5th DCA 1996); Duenas v. State, 636 So. 2d 549, 550 (Fla. 2d DCA 1994); McArthur v. State, 597 So. 2d 406, 407 (Fla. 1st DCA 1992). Consequently, the defendant's motion is properly viewed as a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, which was one of the a…

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