KENNETH CARSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the defendant's second post-conviction motion was improper because the issue raised was successive and the sentences were not illegal.
The defendant appealed the summary denial of his second post-conviction motion, which sought to challenge the legality of his sentence. This issue had…
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Carson appeals the summary denial of his second post-conviction motion pursuant to Florida Rule of Criminal Procedure 3.800. He is entitled to no relief for two reasons.
First, the issue sought to be raised in this cause — the legality of his sentence — is improper because it is successive. It was raised in his direct appeal and this court affirmed without opinion.1 It was raised again in Carson’s June 25, 1998 Motion To Correct Illegal Sentence filed in the trial court. The trial court denied the motion, and Carson’s appeal to this court was dismissed. It was raised for a third time in these proceedings when Carson filed his second Motion To Correct Illegal Sentence on April 21, 1999. This issue cannot be raised again! See Medina v. State, 690 So. 2d 1241 (Fla.1997); Stroble v. State, 689 So. 2d 1089 (Fla. 5th DCA 1997); Raley v. State, 675 So. 2d 170 (Fla. 5th DCA 1996). To do so may subject Carson to sanctions.2
In any event, the sentences Carson received are not illegal. Only the incarcer-ative portion of a split sentence must be within the guideline range. See Holloway v. State, 668 So. 2d 627 (Fla. 5th DCA 1996). The total sentence, imprisonment plus probation, does not exceed the statutory maximum for first degree felonies as established in section 775.082(3)(b). See State v. Mancino, 714 So. 2d 429 (Fla. 1998); State v. Callaway, 658 So. 2d 983 (Fla.1995).
AFFIRMED.
COBB and THOMPSON, JJ., concur. . Carson v. State, 718 So. 2d 1255 (Fla. 5th DCA 1998).
. See State v. Spencer, - So. 2d -, 1999 WL 742294 (Fla. Sept.23, 1999); Rivera v. State, 728 So. 2d 1165 (Fla.1998); Green v. State, 743 So. 2d 178 (Fla. 5th DCA 1999); Hall v. State, 698 So. 2d 576 (Fla. 5th DCA 1997), rev. granted, 718 So. 2d 168 (Fla.1998).
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Johnson v. State, 765 So. 2d 310 (Fla. 5th DCA 2000)…nder the 1994 guidelines. The fact that his split sentence of incarceration followed by probation exceeds the guidelines range is irrelevant, as only the incarcerative portion of a sentence must fall within the guidelines range. See Carson v. State, 747 So. 2d 1002 (Fla. 5th DCA 1999), rev. denied, No. SC00-81, 766 So. 2d 220 (Fla. May 22, 2000). Defendant also claims that the Department of Corrections should be required to recalculate his gain-time. However, the proper remedy to correct a miscalculation of…
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Starling v. State, 764 So. 2d 764 (Fla. 5th DCA 2000)…PER CURIAM. AFFIRMED. See Raley v. State, 675 So. 2d 170 (Fla. 5th DCA 1996); Carson v. State, 747 So. 2d 1002 (Fla. 5th DCA 1999), review denied, No. SC00-81, 766 So. 2d 220 (Fla. May 22, 2000). See also, Alvarez v. State, 358 So. 2d 10 (Fla.1978), COBB, PETERSON and GRIFFIN, JJ., concur.…
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Spangler v. State, 797 So. 2d 29 (Fla. 5th DCA 2001)…PER CURIAM. See Carson v. State, 747 So. 2d 1002 (Fla. 5th DCA 1999), rev. denied, 766 So. 2d 220 (Fla.2000); Abdullah v. State, 679 So. 2d 846 (Fla. 5th DCA 1996). AFFIRMED. SHARP, W., PLEUS and PALMER, JJ., concur.…
Authorities Cited
- State v. Mancino, 714 So. 2d 429 (Fla. 1998)
- State v. Callaway, 658 So. 2d 983 (Fla. 1995)
- Raley v. State, 675 So. 2d 170 (Fla. 5th DCA 1996)
- Rivera v. State, 728 So. 2d 1165 (Fla. 1998)
- Medina v. State, 690 So. 2d 1241 (Fla. 1997)
- Hall v. State, 698 So. 2d 576 (Fla. 5th DCA 1997)
- Stroble v. State, 689 So. 2d 1089 (Fla. 5th DCA 1997)
- Holloway v. State, 668 So. 2d 627 (Fla. 5th DCA 1996)
- Green v. State, 743 So. 2d 178 (Fla. 5th DCA 1999)
- Alphanso E. Harrison v. State, 743 So. 2d 178 (Fla. 3d DCA 1999)