VIVIAN DUBLIN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Dublin appealed the denial of her motion to correct an illegal sentence, challenging consecutive habitual offender sentences imposed for acts occurring during a single criminal episode under Hale v. State. The court affirmed the denial but allowed her to refile under a different procedural rule (3.850) that would extend her time to challenge the sentence.
The court affirmed the denial of Dublin's Rule 3.800 motion but permitted her to file an amended motion under Rule 3.850 without prejudice. The court found that the substantive sentencing issues raised are not generally determinable in a Rule 3.800 proceeding and that the motion did not conform to Rule 3.850 requirements because it was not filed under oath.
[1] A motion to correct an illegal sentence under Rule 3.800 is generally not the proper vehicle for claims requiring an evidentiary hearing, such as whether consecutive habi…
[2] Claims that consecutive habitual offender sentences were imposed for acts occurring during a single criminal episode, if raised within a specific window period following…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“these issues are not generally determinable in a rule 3.800 proceeding since they almost always require an evidentia-ry hearing”
Establishes why Rule 3.800 was inappropriate for Dublin's sentencing challenge
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Join FLexlaw to unlock all legal intelligenceDublin was sentenced on January 14, 1991, to consecutive habitual offender sentences. On July 7, 1995, within a two-year window period following the H…
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W. SHARP, Judge.
Dublin appeals from an order denying her motion to correct an illegal sentence, filed pursuant to Florida Rule of Criminal Procedure 3.800. She argues her consecutive habitual offender sentences are illegal because they were imposed for acts which occurred during a single criminal episode. See Hale v. State, 630 So. 2d 521 (Fla.1993), cert. denied, — U.S. —, 115 S.Ct. 278, 130 L.Ed.2d 195 (1994). The problem in this case is that these issues are not generally determinable in a rule 3.800 proceeding since they almost always require an evidentiary hearing. State v. Callaway, 658 So. 2d 983 (Fla.1995); Gentry v. State, 659 So. 2d 490 (Fla. 5th DCA 1995).
An additional problem in this case is timing. Hale is retroactive and defendants had a two-year window period after the October 14, 1993 decision of Hale in which to raise this issue. Callaway; Brown v. State, 664 So. 2d 311 (Fla. 1st DCA 1995); Pace v. State, 662 So. 2d 1001 (Fla. 1st DCA 1995); Gentry. Dublin was sentenced on January 14, 1991. On July 7, 1995, within the window period, she filed her motion pursuant to rule 3.800. However, by the time the motion was decided by the trial court on October 23,1995, the two-year window period had closed.
In the interest of justice, we elect to treat the motion filed by Dublin as a motion filed pursuant to rule 3.850.1 Since it did not conform to the requirements of that rule (ie., it was not filed under oath), we affirm the denial of that motion without prejudice to Dublin to file an amended motion pursuant to rule 3.850, which conforms to the requirements of that rule. See Groves v. State, 668 So. 2d 1089 (Fla. 1st DCA 1996); Burns v. State, 651 So. 2d 813 (Fla. 5th DCA 1995). See also McClain v. State, 673 So. 2d 966 (Fla. 1st DCA 1996); Caldwell v. State, 659 So. 2d 1358 (Fla. 5th DCA 1995); Gentry.
AFFIRMED; REMANDED without prejudice to defendant to refile amended rule 3.850 motion.
COBB and HARRIS, JJ., concur. . See, e.g., Brown v. State, 664 So. 2d 311 (Fla. 1st DCA 1995); Matthews v. State, 664 So. 2d 6 (Fla. 4th DCA 1995); Freeman v. State, 644 So. 2d 356 (Fla. 1st DCA 1994); Hall v. State, 643 So. 2d 635 (Fla. 1st DCA 1994).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited (14 total)
- Hale v. State, 630 So. 2d 521 (Fla. 1993)
- State v. Callaway, 658 So. 2d 983 (Fla. 1995)
- Hall v. State, 643 So. 2d 635 (Fla. 1st DCA 1994)
- Pace v. State, 662 So. 2d 1001 (Fla. 1st DCA 1995)
- Burns v. State, 651 So. 2d 813 (Fla. 5th DCA 1995)
- Gentry v. State, 659 So. 2d 490 (Fla. 5th DCA 1995)
- Groves v. State, 668 So. 2d 1089 (Fla. 1st DCA 1996)
- Rayfield v. State, 664 So. 2d 6 (Fla. 4th DCA 1995)
- Matthews v. State, 664 So. 2d 6 (Fla. 4th DCA 1995)
- Garret Edwin Brown v. State, 664 So. 2d 311 (Fla. 1st DCA 1995)