ANDRES L. OROSCO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Orosco appealed the denial of a successive rule 3.850 postconviction motion claiming his habitual offender sentence was illegal due to insufficient predicate offenses. The court affirmed the trial court's denial of the motion as successive with respect to the deportation claim, but reversed as to the sentencing issue because it was not raised in the prior motion, and remanded for reconsideration.
The court held that the sentencing claim is not barred as successive because it was not raised in the prior rule 3.850 motion, and such claims may be raised under rule 3.800(a) at any time. The court reversed as to the sentencing issue and remanded for trial court consideration.
[1] A claim that a habitual offender sentence is illegal due to a lack of necessary predicate offenses states a facially sufficient claim for postconviction relief under Flor…
[2] A claim that a habitual offender sentence is illegal due to a lack of necessary predicate offenses may be raised at any time.
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“That assertion states a facially sufficient claim for postconviction relief under Florida Rule of Criminal Procedure 3.800(a). See Judge v. State, 596 So.2d 73, 77-78 (Fla. 2d DCA 1991) (en banc). Such a claim may be raised at any time.”
Establishes that claims of illegal habitual offender sentences based on insufficient predicate offenses may be raised at any time under rule 3.800(a)
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Join FLexlaw to unlock all legal intelligenceOrosco filed a postconviction rule 3.850 motion challenging his habitual offender sentence on the ground that he lacked the necessary predicate offens…
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[*816] PER CURIAM.
Andres L. Orosco appeals the summary denial of his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. The trial court’s order denied Oros-co’s motion on the ground that it was successive of his prior rule 3.850 motion, in which Orosco contended that the trial court failed to inform him that by pleading guilty, he would be subject to deportation. We affirm the trial court’s order in all respects except one.
Orosco asserts in his current rule 3.850 motion that his habitual offender sentence is illegal because he lacks the necessary predicate offenses for such a sentence. That assertion states a facially sufficient claim for postconviction relief under Florida Rule of Criminal Procedure 3.800(a). See Judge v. State, 596 So. 2d 73, 77-78 (Fla. 2d DCA 1991) (en banc). Such a claim may be raised at any time. See Fla. R.Crim. P. 3.800(a).
Although the trial court chose to consider Orosco’s sentencing claim under rule 3.850, instead of rule 3.800(a), we do not believe this claim is successive of the claim raised in Orosco’s prior rule 3.850 motion. Unlike Orosco’s current rule 3.850 motion, his prior motion did not raise any sentencing issues. We therefore conclude that Orosco is not barred from raising this sentencing issue by virtue of his prior rule 3.850 motion. See, e.g., Reid v. State, 724 So. 2d 127 (Fla. 1st DCA 1998) (holding rule 3.850 motion alleging ineffective assistance of counsel was not successive where previous motions filed pursuant to rule 3.800, but treated as rule 3.850 motions, raised only sentencing issues); Kelly v. State, 712 So. 2d 780 (Fla. 2d DCA 1998) (holding rule 3.850 motion asserting ineffectiveness of counsel was not successive of prior motion filed pursuant to rule 3.850, but really a rule 3.800 motion, attacking defendant’s sentence as being illegal).
We accordingly reverse as to this specific sentencing issue and remand to the trial court for further consideration. In reaching this result, we note that this sentencing issue might be barred if Orosco raised it in a prior rule 3.850 or rule 3.800(a) motion and it was adjudicated on its merits. See, e.g., Raley v. State, 675 So. 2d 170, 173 (Fla. 5th DCA 1996); Burns v. State, 637 So. 2d 937 (Fla. 2d DCA 1994). If the trial court again denies Orosco’s motion on this claim, it must attach those portions of the record which refute the claim. See Wilson v. State, 692 So. 2d 971 (Fla. 2d DCA 1997).
Affirmed in part; reversed in part.
CAMPBELL, A.C.J., and CASANUEVA and STRINGER, JJ., Concur.
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Forrest Atwood v. State, 765 So. 2d 242 (Fla. 1st DCA 2000)…cutive years from 1987, his most recent date of release. “A court may at any time correct an illegal sentence imposed by it or an incorrect calculation made by it in a sentencing guideline scoresheet.” Fla. R.Crim. P. 3.800(a); see Orosco v. State, 730 So. 2d 815 (Fla. 2d DCA 1999). “If an erroneous scoresheet calculation is apparent on the face of the record, it is renewable under rule 3.800(a).” Johnson v. State, 702 So. 2d 247, 248 (Fla. 4th DCA 1997); Lewis v. State, 719 So. 2d 924 (Fla. 1st DCA 1998); C…
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Bryan v. State, 779 So. 2d 416 (Fla. 2d DCA 2000)…allenges the legality of his sentence, is really a motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). It therefore is not barred as successive and does not constitute an abuse of process. See Orosco v. State, 730 So. 2d 815 (Fla. 2d DCA 1999) (holding defendant was not barred from raising sentencing issue in rule 3.850 motion by virtue of prior rule 3.850 motion which did not raise any sentencing issues). We accordingly reverse and remand for the trial court to deter…
Authorities Cited
- Judge v. State, 596 So. 2d 73 (Fla. 2d DCA 1991)
- Raley v. State, 675 So. 2d 170 (Fla. 5th DCA 1996)
- Price v. State, 692 So. 2d 971 (Fla. 2d DCA 1997)
- Wilson v. State, 692 So. 2d 971 (Fla. 2d DCA 1997)
- Hill v. Unemployment Appeals Comm'n, 712 So. 2d 780 (Fla. 5th DCA 1998)
- Burns v. State, 637 So. 2d 937 (Fla. 2d DCA 1994)
- Reid v. State, 724 So. 2d 127 (Fla. 1st DCA 1998)