TYRONE OLIVER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The Florida First District Court of Appeal reviewed a trial court's summary denial of Oliver's Rule 3.850 motion for postconviction relief. Oliver challenged habitual offender sentences imposed for drug possession offenses committed on June 17, 1993, arguing that an amendment to section 775.084 that became effective that same date prohibited such sentences. The court reversed and remanded because Oliver's legal claim was sufficient and the trial court failed to support its denial with conclusive record evidence.
Oliver's claim was timely filed under Rule 3.850 and was legally sufficient on its face because, if the offenses were committed on June 17, 1993, he would be entitled to have the habitual offender sentences set aside. The trial court erred in summarily denying relief without attaching record evidence conclusively establishing Oliver was not entitled to relief.
[1] A motion for postconviction relief is timely if filed within two years of the date on which resentencing following a prior remand became final.
[2] A claim that a habitual offender sentence is illegal due to a statutory amendment effective on the date of the offense may be considered under Florida Rule of Criminal Pr…
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Join FLexlaw to unlock all legal intelligence“section 775.084 was amended effective June 17, 1993, to proscribe an habitual offender sentence for offenses relating to the purchase or possession of a controlled substance”
Establishes the substantive legal change that is the basis for Oliver's claim
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Join FLexlaw to unlock all legal intelligenceTyrone Oliver received two 18-year habitual offender sentences for possession of cocaine with intent to sell or deliver. Oliver claimed both offenses …
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WEBSTER, J.
Appellant seeks review of an order which summarily denied his motion filed pursuant to Florida Rule of Criminal Procedure 3.850, seeking postconviction relief. Only one of the grounds raised merits discussion.
Appellant claimed that he had received two 18-year habitual offender sentences for possession of cocaine with intent to sell or deliver. He claimed, further, that those offenses were committed on June 17, 1993, the same date on which an amendment to section 775.084 proscribing habitual offender sentencing for offenses relating to purchase or possession of a controlled substance became effective. Therefore, according to appellant, his 18-year habitual offender sentences for the second-degree felonies of possession of cocaine with intent to sell or deliver were illegal. The trial court denied relief as to this claim on the grounds that it was not timely filed, and that it should have been raised on direct appeal.
Appellant’s claim was not untimely if considered pursuant to Rule 3.850 because it was filed within two years of the date on which his resentencing following remand from this court became final. In Oliver v. State, 666 So. 2d 926 (Fla. 1st DCA 1995), this court reversed appellant’s sentences and remanded for resentencing. Appellant was resentenced on September 18, 1995. He then sought review of his resentencing in this court.
We affirmed without opinion. Oliver v. State, 688 So. 2d 918 (Fla. 1st DCA 1997) (table). Our mandate issued on March 27, 1997. Appellant filed his motion in the trial court on January 9, 1998, well within the two-year time limit established in Rule 3.850.
Moreover, it is apparent that this claim is one which might be considered pursuant to Florida Rule of Criminal Procedure 3.800(a), as to which there is no time limit.
Appellant correctly represents that section 775.084 was amended effective June 17, 1993, to proscribe an habitual offender sentence for offenses relating to the purchase or possession of a controlled substance. Ch. 93 — 406, §§ 2, 44, at 2912, 2974, Laws of Fla. He claims that he committed the two offenses of possession with intent to sell or deliver on June 17, 1993. If this representation is true, appellant would be entitled to have the habitual offender sentences for those two offenses set aside, and to be resentenced pursuant to the guidelines. See, e.g., Gagger v. State, 699 So. 2d 347 (Fla. 5th DCA 1997) (whether a defendant may be sentenced as an habitual offender for possession of cocaine depends upon the version of section 775.084 in effect when the offenses were committed).
Accordingly, appellant’s claim is legally sufficient on its face. Because the trial court did not attach to its order denying relief portions of the record conclusively establishing that appellant is not entitled to relief, we reverse and remand as to this claim only. Should the trial court again conclude that appellant is not entitled to relief, it shall attach to its order those portions of the record, which conclusively establish that. In all other respects, the order denying relief is affirmed.
AFFIRMED IN PART; REVERSED IN PART; and REMANDED, with directions.
ALLEN and VAN NORTWICK, JJ., CONCUR.
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Snipes v. State, 843 So. 2d 1043 (Fla. 2d DCA 2003)…rovided by law may be filed at any time. No other motion shall be filed or considered pursuant to this rule if filed more than 2 years after the judgment and sentence become final in a noncapital case.... (Emphasis added.) See also Oliver v. State, 734 So. 2d 1083 (Fla. 1st DCA 1999) (holding that the two-year time limitation of rule 3.850 does not commence until the sentence becomes final). We also note the well-established principle that while appeal proceedings are pending in an appellate court, the trial…
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Zackery Shabazz Peterson v. State, 743 So. 2d 1134 (Fla. 1st DCA 1999)…vacated. Since the 1993 amendments to the habitual offender statute, habitualization for offenses relating to the purchase or possession of a controlled substance has not been authorized. See § 775.084(l)(a) 3., Fla.Stat. (1997); Oliver v. State, 734 So. 2d 1083 (Fla. 1st DCA 1999). In Nelson v. State, 719 So. 2d 1230 (Fla. 1st DCA 1998) (general division en banc), this court held that a habitual offender sentence for an offense for which habitualization is not statutorily authorized constitutes an “illegal…
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Owens v. State, 792 So. 2d 650 (Fla. 4th DCA 2001)…he possession of cocaine charges to which appellant agreed. The state correctly concedes that the trial court erred and asks this court to reverse and remand for re-sentencing on count II, possession of cocaine, in case 98-4826. See Oliver v. State, 734 So. 2d 1083 (Fla. 1st DCA 1999); Washington v. State, 750 So. 2d 118 (Fla. 2d DCA 1999); Pittman v. State, 733 So. 2d 594 (Fla. 3d DCA 1999); Daniels v. State, 679 So. 2d 354 (Fla. 5th DCA 1996). Accordingly, we reverse and remand for re-sentencing on count II,…
Authorities Cited
- Gagger v. State, 699 So. 2d 347 (Fla. 5th DCA 1997)
- Oliver v. State, 666 So. 2d 926 (Fla. 1st DCA 1995)