DAVID LEE HALL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a motion styled under rule 3.800, Florida Rules of Criminal Procedure, raising an issue regarding notice of intent to habitualize, should be treated as if filed under rule 3.850 in the interest of justice.
Appellant sought post-conviction relief, alleging his habitual offender sentence was unlawful due to lack of notice prior to his plea. The trial court…
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PER CURIAM.
Upon consideration of appellee’s motion for rehearing, we withdraw this court’s previous opinion in this case, which was issued on April 12, 1994, and published at 19 Fla.L.Weekly D837, and substitute the following opinion therefor. Appellant, David Lee Hall, appeals the trial court’s denial of his motion for post-conviction relief filed pursuant to rule 3.800, Florida Rules of Criminal Procedure. As grounds for relief, Hall alleged his sentence was unlawful in that he was not furnished with notice of intent to habitualize prior to entry of his plea, as mandated by Ashley v. State, 614 So. 2d 486 (Fla.1993).
Although styled pursuant to rule 3.800, the scope of which is relatively narrow, Hall’s motion raises an issue more appropriate for consideration under rule 3.850. The courts have the authority to treat prisoner petitions as if the proper remedy were sought if it would be in the interest of justice to do so. Fenter v. State, 632 So. 2d 685, 686 n. 1 (Fla. 2d DCA 1994). See also Arnett v. State, 591 So. 2d 1014 (Fla. 1st DCA 1992); and Priest v. State, 483 So. 2d 900 (Fla. 1st DCA 1986). In the instant case, the court below should have treated Hall’s motion as if filed pursuant to rule 3.850.1 See Young v. State, 619 So. 2d 378 (Fla. 2d DCA 1993); DeSantis v. State, 400 So. 2d 525 (Fla. 5th DCA 1981).
We reverse and remand this cause with directions to attach those portions of the files and records conclusively showing that Hall is entitled to no relief, or, if the record does not conclusively contradict the allegations, to conduct an evidentiary hearing as to whether the requirements of Ashley were complied with prior to entry of Hall’s plea. If they were not, then Hall’s habitual offender sentence is illegal and he must be permitted to withdraw his plea or be sentenced within the guidelines.
REVERSED and REMANDED with directions.
ERVIN, MICKLE and DAVIS, JJ., concur. . Our review of the motion reveals that it complies with the technical requirements of rule 3.850, including the requirement that the motion be made under oath. Timeliness is not at issue inasmuch as the motion was filed within two years after judgment and sentence became final subsequent to direct appeal. See Myers v. State, 539 So. 2d 525 (Fla. 1st DCA1989).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (17 total)
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Johnson v. State, 60 So. 3d 1045 (Fla. 2011)…ected that a motion filed under rule 3.800(a) may be treated as a motion filed under rule 3.850 where it is in the “interest of justice to do so” and the motion would be timely under rule 3.850. Brooks, 969 So. 2d at 243 n. 8 (quoting Hall v. State, 643 So. 2d 635, 636 (Fla. 1st DCA 1994)). In the instant cases, however, the motions filed by Johnson and Joyner also do not state a prima facie claim under rule 3.850. Again, neither defendant alleged in his motion that his plea was involuntary. Nor did they alle…
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Brooks v. State, 969 So. 2d 238 (Fla. 2007)….850. See Fla. R.Crim. P. 3.850(b). In such cases, for purposes of determining harmless error, the court should treat a motion alleging scoresheet error as one filed under rule 3.850 and apply the would-have-been-imposed standard. See Hall v. State, 643 So. 2d 635, 636 (Fla. 1st DCA 1994) (stating that "courts have the authority to treat prisoner petitions as if the proper remedy were sought if it would be in the interest of justice to do so” and finding that the "[trial court] should have treated Hall’s [3.8…
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Stoutamire v. State, 710 So. 2d 744 (Fla. 1st DCA 1998)…sidered as such by the trial court had the notary’s certificate reflected that he took an oath that substantially complied with Florida Rules of Criminal Procedure 3.987, see Zipperer v. Singletary, 693 So. 2d 122 (Fla. 1st DCA 1997); Hall v. State, 643 So. 2d 635 (Fla. 1st DCA 1994) (on rehearing). Since it does not substantially comply, we must affirm; however, our affir-mance is without prejudice to file a properly sworn rule 3.850 motion before the time expires to do so. AFFIRMED. JOANOS and WOLF, JJ.…
Previewing 3 of 17 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ashley v. State, 614 So. 2d 486 (Fla. 1993)
- DeSANTIS v. State, 400 So. 2d 525 (Fla. 5th DCA 1981)
- Myers v. State, 539 So. 2d 525 (Fla. 1st DCA 1989)
- Fenter v. State, 632 So. 2d 685 (Fla. 2d DCA 1994)
- State v. Brown, 619 So. 2d 378 (Fla. 2d DCA 1993)
- Hersey v. Batchelor, 483 So. 2d 900 (Fla. 5th DCA 1986)
- Arnett v. State, 591 So. 2d 1014 (Fla. 1st DCA 1991)