ANTHONY SPATES, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant's motion to correct an illegal sentence under Florida Rule of Criminal Procedure 3.800(a) was properly denied because he failed to claim his sentence exceeded the statutory maximum and his firearm-possession claim is not cognizable under that rule.
A motion to correct an illegal sentence under Rule 3.800(a) is cognizable only when the sentence exceeds the statutory maximum, not when challenging the factual basis for a mandatory minimum term.
[1] A motion to correct an illegal sentence under Rule 3.800(a) requires that the sentence exceed the statutory maximum; a challenge to the factual basis for a mandatory mini…
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Join FLexlaw to unlock all legal intelligenceAppellant received a 41.25-month sentence for attempted armed robbery in two cases, with a three-year mandatory minimum in one case, which he specific…
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PER CURIAM.
The appellant challenges an order by which his motion to correct an illegal sentence, pursuant to Florida Rule of Criminal Procedure 3.800(a), was denied. We affirm.
The record reveals that Appellant specifically agreed to his 41.25 months’ sentence for attempted armed robbery in each of two cases, with a three-year minimum mandatory in one case only. In his motion, Appellant did not claim that his sentence exceeded the statutory maximum and, therefore, he failed to raise a cognizable illegal sentence claim. King v. State, 681 So. 2d 1136 (Fla.1996), Davis v. State, 661 So. 2d 1193 (Fla.1995), and State v. Callaway, 658 So. 2d 983 (Fla.1995). His sole claim that the trial court erred in failing to establish a factual basis for finding he possessed a firearm before imposing a mandatory term, pursuant to section 775.087(2), Florida Statutes, is not cognizable under 3.800(a). See Wickline v. State, 687 So. 2d 327 (Fla. 1st DCA 1997). We acknowledge the Second District has repeatedly held to the contrary, the most recent opinion being Mancino v. State, 689 So. 2d 1235 (Fla. 2d DCA 1997), and, therefore, we certify conflict with that decision.
We note that we cannot treat Appellant’s sworn motion under 3.850, as it is facially and legally insufficient, and the two-year time limit for such motions has expired.
ERVIN and KAHN, JJ., concur. BENTON, J., concurs in result.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Sanchez v. State, 979 So. 2d 1004 (Fla. 3d DCA 2008)…does not apply to this defendant. The trial court denied the rule 3.800(a) motion in an order stating that a motion to correct illegal sentence cannot be used to attack the factual basis for a plea. In so doing, the court relied on Spates v. State, 700 So. 2d 445 (Fla. 1st DCA 1997). The rule 3.800(a) motion could not be treated as a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 because the two-year time period for a rule 3.850 motion had expired. This Court affirmed without…
Authorities Cited
- Davis v. State, 661 So. 2d 1193 (Fla. 1995)
- State v. Callaway, 658 So. 2d 983 (Fla. 1995)
- King v. State, 681 So. 2d 1136 (Fla. 1996)
- Wickline v. State, 687 So. 2d 327 (Fla. 1st DCA 1997)
- Mancino v. State, 689 So. 2d 1235 (Fla. 2d DCA 1997)