ROBERT L. WILLIAMS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Robert Williams appealed the denial of his Rule 3.850 motion seeking collateral relief on the grounds that 40 points for victim injury were improperly assessed under his sentencing scoresheet. The court affirmed the denial, finding the motion untimely, successive, and without merit because a subsequent statutory amendment superseded the controlling case law Williams relied upon.
The court affirmed the denial of Williams' motion on three independent grounds: (1) the motion was untimely filed more than two years after judgment became final; (2) the motion was procedurally barred as successive; and (3) the motion had no merit because a statutory amendment requiring sexual penetration to be scored as severe injury regardless of physical injury superseded Karchesky.
[1] A motion for collateral relief filed pursuant to Florida Rule of Criminal Procedure 3.850 is untimely if filed more than two years after the date the judgment and sentenc…
[2] A successive motion for collateral relief is procedurally barred unless the movant provides a reason why the issue could not have been raised in the prior motion.
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“We agree with the trial court that Williams' motion is untimely because it was filed more than two years after the date Williams' judgment and sentence became final.”
Establishes the timeliness requirement for Rule 3.850 motions and the court's finding of procedural bar.
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Join FLexlaw to unlock all legal intelligenceWilliams pleaded no contest on December 9, 1994, to sexual battery of a person 12 years or older without physical force or violence. He committed the …
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W. SHARP, Judge.
Williams appeals from the denial of his motion filed July 17, 1997, pursuant to Florida Rule of Criminal Procedure 3.850. He argues he is entitled to collateral relief because 40 points for victim injury were im properly assessed on his scoresheet, according to the dictates of Karchesky v. State, 591 So. 2d 930 (Fla.1992). He pled no contest, on December 9, 1994, to sexual battery of a person 12 years or older without physical force or violence.1 No direct appeal was filed. We affirm.
We agree with the trial court that Williams’ motion is untimely because it was filed more than two years after the date Williams’ judgment and sentence became final. Fla. R.App. P. 3.850(b). We also agree with the trial court that this motion, even if not time barred, is proeedurally barred because it is successive. See, e.g., Mills v. State, 684 So. 2d 801 (Fla.1996); Penn v. State, 688 So. 2d 450 (Fla. 5th DCA 1997); § 924.051(9), Fla. Stat. (Supp.1996). Williams previously filed a rule 3.850 motion with the trial court and the denial of that motion was affirmed by this court. See Williams v. State, 663 So. 2d 641 (Fla. 5th DCA 1995). Williams gives no reason, nor is any apparent, why the issue involved in this motion could not or should not have been raised in the prior motion.
Further, it appears that Williams also previously filed a motion to correct sentence pursuant to Florida Rule of Criminal Procedure 3.800, based on Karchesky. That motion was also denied and the denial was affirmed on appeal. See Williams v. State, 695 So. 2d 708 (Fla. 5th DCA 1997). That decision should be the law of the case, right or wrong.
In any event, Williams’ motion has no merit. He committed his criminal offense on June 28,1994, after the statutory amendment requiring sexual penetration to be scored as a severe injury, regardless of whether or not there is evidence of any physical injury. See § 921.0011(7), Fla. Stat. (1993). Karchesky was superseded by this statutory amendment to the guidelines and does not apply to this case.
AFFIRMED.
GOSHORN and THOMPSON, JJ., concur. . § 794.011(5), Fla. Stat. (1993).
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Brown v. State, 786 So. 2d 1257 (Fla. 5th DCA 2001)…pro tunc language. It is well established that, where a written order does not conform to the trial court’s oral pronouncement, the oral pronouncement controls. See Arnold, v. State, 754 So. 2d 149, 150 (Fla. 2d DCA 2000). Accord Lesesne v. State, 706 So. 2d 137 (Fla. 5th DCA 1998). Since the record demonstrates that the trial court pronounced at the re-sentencing hearing that the defendant’s sentence was to run nunc pro tunc to the date the original sentence was entered, we remand this matter to the trial…
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Maynard Witherspoon v. State, 710 So. 2d 143 (Fla. 5th DCA 1998)…inion. Witherspoon v. State, 621 So. 2d 1089 (Fla. 5th DCA 1993). The second challenge as well as this one are barred because they are successive and improper, and they seek to raise points already finally decided by this court. Williams v. State, 706 So. 2d 137 (Fla. 5th DCA 1998); Eneias v. State, 696 So. 2d 1365 (Fla. 5th DCA 1997); Cassady v. State, 683 So. 2d 1194 (Fla. 5th DCA 1996); Johnson v. State, 680 So. 2d 1101 (Fla. 5th DCA 1996). This court’s ruling on direct appeal cannot be changed or challe…
Authorities Cited
- Karchesky v. State, 591 So. 2d 930 (Fla. 1992)
- Mills v. State, 684 So. 2d 801 (Fla. 1996)
- Penn v. State, 688 So. 2d 450 (Fla. 5th DCA 1997)