EDDIE MACK LOCK, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court improperly denied the motion for post-conviction relief as successive and untimely.
Eddie M. Lock appealed the summary denial of his motion for post-conviction relief, asserting unlawful consecutive habitual offender sentences for off…
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PER CURIAM.
Eddie M. Lock appeals the summary denial of his motion for posteonviction relief. It is asserted that the trial court improperly sentenced him as a habitual violent felony offender to two consecutive life sentences for offenses which arose out of a single criminal episode. The trial court denied the motion as successive and untimely. We reverse and remand.
Lock’s concise, properly sworn motion adequately alleges that the consecutive habitual offender sentences in his case appear to be unlawful and violative of Hale v. State, 630 So. 2d 521 (Fla.1993), cert. denied, — U.S. —, 115 S.Ct. 278, 130 L.Ed.2d 195 (1994). Under the dictates of State v. Callaway, 658 So. 2d 983 (Fla.1995) [approving Callaway v. State, 642 So. 2d 636 (Fla. 2d DCA 1994) ], Lock’s motion for post-conviction relief raising the Hale issue is not untimely. The motion was filed August 10, 1995, within the two-year window of opportunity created by the supreme court to raise the Hale issue.1
This matter is remanded for the trial court to address Lock’s motion. If it again denies the motion, it shall attach those portions of the record which conclusively refute Lock’s allegations. Alternatively, the trial court may conduct an evidentiary hearing to address the matter. Reversed and remanded.
FRANK, A.C.J., and ALTENBERND and WHATLEY, JJ., concur. . The supreme court has held that Hale v. State, 630 So. 2d 521 (Fla.1993), cert. denied, - U.S. -, 115 S.Ct. 278, 130 L.Ed.2d 195 (1994), may be applied retroactively. There is a two-year window following the February 9, 1994, final decision in Hale for filing motions to challenge such an unlawful sentence. State v. Callaway, 658 So. 2d 983, 987 (Fla.1995). Additionally, Lock’s motion is not successive as his original motion for posteonviction relief was filed before the Hale decision was final.
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Dixon v. State, 730 So. 2d 265 (Fla. 1999)…ld be calculated from October 14, 1993, the date this Court issued its opinion in Hale v. State, 630 So. 2d 521 (Fla.1993). However, the Second District's statement in Sikes is contrary to its previous dicta contained in a footnote in Lock v. State, 668 So. 2d 1081, 1081 n. 1 (Fla. 2d DCA 1996), utilizing the date of rehearing in Hale. . The Third District in Dixon v. State, 697 So. 2d 966, 967 (Fla. 3d DCA 1997), citing to dicta in Lock, 668 So. 2d at 1081 n. 1, stated that the two-year window in which to br…
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Dixon v. State, 697 So. 2d 966 (Fla. 3d DCA 1997)…hat the two-year period for seeking such relief would run from the decision in Hale. 658 So. 2d at 987-88. Counting the time from the denial of rehearing in Hale on February 9, 1994, the two-year period ran until February 9, 1996. See Lock v. State, 668 So. 2d 1081, 1081 n. 1 (Fla. 2d DCA 1996). Defendant filed his post-Callaway Rule 3.850motion on August 11, 1996. The motion was therefore untimely because it was filed more than two years from the Hale decision — although it was within two years after the dat…
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Griffin Dukes v. State, 703 So. 2d 498 (Fla. 1st DCA 1997)…g consecutive habitual offender sentences for offenses arising from the same criminal episode), cert, denied, 513 U.S. 909, 115 S.Ct. 278, 130 L.Ed.2d 195 (1994). . Relying on dicta in a footnote from a Second District Court opinion. Lock v. State, 668 So. 2d 1081, n. 1 (Fla. 2d DCA 1996), although inconsistent with the Second District’s holding in Sikes, supra.…
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hale v. State, 630 So. 2d 521 (Fla. 1993)
- State v. Callaway, 658 So. 2d 983 (Fla. 1995)
- Callaway v. State, 642 So. 2d 636 (Fla. 2d DCA 1994)