JOHN A. BOTELHO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Florida appellate court reversed denial of postconviction relief motion where defendant claimed illegal habitual offender sentence based on insufficient prior felony convictions, requiring trial court to provide record evidence on remand.
A trial court must attach portions of the record conclusively demonstrating the defendant's ineligibility for relief when denying a Rule 3.800(a) motion challenging a habitual offender sentence based on insufficient predicate convictions.
[1] When a defendant challenges a habitual offender sentence under Rule 3.800(a) based on insufficient predicate felony convictions, the trial court must attach portions of t…
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Join FLexlaw to unlock all legal intelligence“the absence of the required predicate offenses renders a habitual offender sentence illegal and is thus subject to correction in a rule 3.800(a) proceeding”
Court explaining that insufficient prior convictions make a habitual offender sentence subject to postconviction relief
John Botelho was sentenced as a habitual offender but claimed he had only one prior felony conviction rather than the two required by statute. The tri…
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FRANK, Judge.
John Botelho challenges the trial court’s order denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Botelho raises two issues in his motion, the first of which is meritless. In his second issue, he claims he was illegally sentenced as a habitual offender; he had only one prior felony conviction rather than two prior felony convictions required by section 775.084(l)(a)l., Florida Statutes (1991). The trial court summarily denied this aspect of Botelho’s motion without attaching copies of his prior convictions or any other portions of the record that would conclusively refute his claim. His claim, if true, would entitle him to be resen-tenced under the guidelines. See Judge v. State, 596 So. 2d 73 (Fla. 2d DCA)(en banc)(explaining that the absence of the required predicate offenses renders a habitual offender sentence illegal and is thus subject to correction in a rule 3.800(a) proceeding), rev. denied, 613 So. 2d 5 (Fla.1992).
Accordingly, we reverse and remand for further proceedings consistent with this opinion. On remand, should the trial court again deny this allegation of Botelho’s motion, it must attach those portions of the record conclusively demonstrating that Botelho is entitled to no relief. Strayer v. State, 676 So. 2d 77 (Fla. 2d DCA 1996).
DANAHY, A.C.J., and WHATLEY, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Bover v. State, 797 So. 2d 1246 (Fla. 2001)…Bover v. State, 732 So. 2d 1187, 1192 (Fla. 3d DCA 1999), in which the Third District Court of Appeal certified conflict with the decisions of the Second District Court of Appeal in Bell v. State, 693 So. 2d 700 (Fla. 2d DCA 1997), Botelho v. State, 691 So. 2d 648 (Fla. 2d DCA 1997), and Judge v. State, 596 So. 2d 73 (Fla. 2d DCA 1991) (en banc), and the decision of the Fourth District Court of Appeal in Freshman v. State, 730 So. 2d 351 (Fla. 4th DCA 1999). We have jurisdiction. See art. V, § 3(b)(4), Fla. C…
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Bover v. State, 732 So. 2d 1187 (Fla. 3d DCA 1999)…d at any time from a review of the defendant’s criminal records. Id. at 78 (emphasis added); see also Freshman v. State, 24 Fla. L. Weekly D707, 730 So. 2d 351 (Fla. 4th DCA 1999); Bell v. State, 693 So. 2d 700 (Fla. 2d DCA 1997); Botelho v. State, 691 So. 2d 648 (Fla. 2d DCA 1997). The logic of Judge is that the habitual offender statute increases the legal maximum-term. In the present case, habituali-zation of defendant means that for his third-degree felonies the regular five-year maximum becomes ten. Se…1 / 2
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Moore v. State, 748 So. 2d 1094 (Fla. 3d DCA 2000)…ee Bover v. State, 732 So. 2d 1187 (Fla. 3d DCA 1999), review granted, No. 95,649, 743 So. 2d 508 (Fla. Oct. 26, 1999). Contra Freshman v. State, 730 So. 2d 351 (Fla. 4th DCA 1999); Bell v. State, 693 So. 2d 700 (Fla. 2d DCA 1997); Botelho v. State, 691 So. 2d 648 (Fla. 2d DCA 1997); Judge v. State, 596 So. 2d 73 (Fla. 2d DCA 1991). Assuming for purposes of discussion, however, that Rule 3.800(a) could be used for that purpose, and further assuming that this claim is not otherwise procedurally barred, it is…
Previewing 3 of 6 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Judge v. State, 596 So. 2d 73 (Fla. 2d DCA 1991)
- Strayer v. State, 676 So. 2d 77 (Fla. 2d DCA 1996)