GEORGE ANTHONY HUBBARD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A challenge to the imposition of a mandatory minimum sentence based on alleged lack of evidence is cognizable in a motion to correct an illegal sentence.
George Hubbard filed a motion to correct an illegal sentence, asserting that the evidence did not establish he possessed a firearm during an armed bur…
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PER CURIAM.
George Hubbard challenges the trial court’s denial of his motion permitted by Florida Rule of Criminal Procedure 3.800(a). In his motion he asserts that a three-year mandatory sentence was imposed for the offense of armed burglary, but he claims the evidence did not establish that he was ever in possession of a firearm during the offense. The court denied the motion on the grounds that the resolution of this question requires an evidentiary determination, and, thus, is not cognizable on a motion to correct an illegal sentence. This court has determined to the contrary, and we reverse.
In Brown, v. State, 633 So. 2d 112 (Fla. 2d DCA 1994), we held that a challenge to the imposition of a three-year minimum sentence imposed pursuant to section 775.087(2), Florida Statutes (1989), is appropriately raised in a motion to correct illegal sentence.1 Accordingly, we reverse this matter with directions to the trial court to assess the merits of Hubbard’s allegations. If they are not refuted by the record, an evidentiary hearing will be required. See Robinson v. State, 640 So. 2d 1200 (Fla. 2d DCA 1994).
Appellate review of any subsequent order from the trial court must be filed within thirty days of its rendition.
Reversed and remanded with directions.
FRANK, A.C.J., and BLUE and FULMER, JJ., concur. . See footnote three of Judge Altenbemd's dissent for the history of this court’s treatment of this issue in Brown v. State, 633 So. 2d 112, 117 (Fla. 2d DCA 1994).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Mancino v. State, 689 So. 2d 1235 (Fla. 2d DCA 1997)…recurring example of a trial court in this district taking a contrary position to our well-established precedent that claims such as the appellant’s are procedurally cognizable under rule 3.800(a). See, e.g., Word, 682 So. 2d 642; Hubbard v. State, 667 So. 2d 936 (Fla. 2d DCA 1996). We recently confronted similar situations in White v. State, 688 So. 2d 1005 (Fla. 2d DCA 1997), and Washington v. State, 688 So. 2d 416 (Fla. 2d DCA 1997). As in this case, the trial court in Washington denied a rale 3.800(a) mo…
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White v. State, 688 So. 2d 1005 (Fla. 2d DCA 1997)…the imposition of a three-year minimum sentence imposed pursuant to section 775.087(2), Florida Statutes (1989), based on the alleged lack of possession of a weapon, is appropriately raised in a motion to correct illegal sentence. Hubbard v. State, 667 So. 2d 936, 937 (Fla. 2d DCA 1996). A challenge to the reclassification of a felony based on possession of a weapon or firearm pursuant to section 775.087(1), Florida Statutes (1989), should not be treated differently. See Reyes v. State, 676 So. 2d 31 (Fla. 2…
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Freddrick Charles Washington v. State, 688 So. 2d 416 (Fla. 2d DCA 1997)…ule 3.850 motion. We reverse. Attempts to correct sentences which claim, as does Washington’s, an absence of a factual basis to sustain the mandatory portion of the sentence are in fact cognizable through the use of rule 3.800(a). Hubbard v. State, 667 So. 2d 936 (Fla. 2d DCA 1996). When the conviction results from the verdict in a jury trial, the sentence can be sustained only if a special verdict form is returned establishing the facts necessary for the imposition of the mandatory sentence. State v. Tripp,…
Authorities Cited
- Cueto v. State, 633 So. 2d 112 (Fla. 2d DCA 1994)
- Brown v. State, 633 So. 2d 112 (Fla. 2d DCA 1994)
- Browne v. Browne, 640 So. 2d 1200 (Fla. 4th DCA 1994)