CHARLIE BROWN, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The appellate court reversed the trial court's summary denial of postconviction relief on two grounds involving illegal sentencing as a habitual offender, finding these claims raised preliminary grounds for relief under rule 3.850 despite prior direct appeal.
A defendant may raise on postconviction relief under rule 3.850 claims of illegal sentencing as a habitual offender based on improper felony classification or consecutive habitual sentences, even if previously raised on direct appeal, because such claims constitute preliminary grounds for relief.
[1] A claim that a defendant was improperly sentenced as a habitual offender based on a felony of a lower degree than required, or that consecutive habitual sentences were im…
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Join FLexlaw to unlock all legal intelligenceCharlie Brown, Jr. was convicted and sentenced as a habitual offender. He filed a motion for postconviction relief raising six grounds, including clai…
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PER CURIAM.
Appellant challenges the summary denial of his motion for postconviction relief pursuant to rule 3.850, Florida Rules of Criminal Procedure. Appellant raised six grounds in his motion for postconvietion relief.
The trial court denied the claim as to all six grounds.
We find no error as to the denial of points three-six.
The trial court based its denial of grounds one and two on the fact that the appellant had previously raised these grounds on direct appeal.
We find that the trial court was in error as to this contention. As to ground one, appellant claims that his sentence was illegal because the trial court improperly sentenced him as a habitual offender pursuant to a first-degree felony conviction where his conviction was for a second-degree felony.
We find that the allegation raises a preliminary ground for relief pursuant to Spicer v. State, 615 So. 2d 725 (Fla. 2d DCA 1993). As to ground two, appellant claims his sentence was illegal in that the trial court imposed consecutive habitual sentences in violation of Hale v. State, 630 So. 2d 521 (Fla.1993).
We find that this allegation also raises a preliminary ground for relief pursuant to rule 3.850, Florida Rules of Criminal Procedure. See Rodgers v. State, 645 So. 2d 20 (Fla. 1st DCA 1994); Rosier v. State, 655 So. 2d 160 (Fla. 1st DCA 1995). We remand to the trial court for further proceedings consistent with this opinion.
WOLF and WEBSTER, JJ., concur. LAWRENCE, J., concurs in result only.
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Brown v. State, 662 So. 2d 1356 (Fla. 1st DCA 1995)…WOLF, Judge. Appellee seeks rehearing of our decision in Brown v. State, 658 So. 2d 659 (Fla. 1st DCA 1995). We grant the motion in part. Appellee asserts two grounds on rehearing. We find that only one has merit. Appellant’s motion for postconviction relief fails to allege sufficient facts to establish that the convictions arose from…
Authorities Cited
- Hale v. State, 630 So. 2d 521 (Fla. 1993)
- Spicer v. State, 615 So. 2d 725 (Fla. 2d DCA 1993)
- Moore v. Earnest Glen Moore, 655 So. 2d 160 (Fla. 1st DCA 1995)
- Rodgers v. State, 645 So. 2d 20 (Fla. 1st DCA 1994)