ERIN PATRICK FINAN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant's Rule 3.850 motion for postconviction relief was summarily denied because he failed to allege he would not have pleaded guilty had he known of habitual felony offender sentencing, though he may refile a facially sufficient motion within sixty days.
A defendant seeking to withdraw a guilty plea based on lack of notice of habitual felony offender sentencing must allege that he would not have pleaded had he been aware of that sentencing exposure.
[1] A defendant seeking to withdraw a guilty plea based on lack of notice of habitual felony offender status must allege that he would not have pleaded guilty had he been awa…
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Join FLexlaw to unlock all legal intelligenceErin Patrick Finan was sentenced as a habitual felony offender without prior notice of that status before he entered his pleas.…
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PER CURIAM.
Erin Patrick Finan appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Finan alleges that his habitual offender sentences are illegal and that counsel was ineffective for failing to preserve the issue for appellate review. He further argues that he is entitled to be resentenced within the guidelines because he was not noticed as a habitual felony offender prior to entering his pleas. We conclude that Finan is not entitled to guidelines sentences but may be entitled to withdraw his pleas. See State v. Wilson, 658 So. 2d 521 (Fla.1995).
Although Finan sought the alternative relief of withdrawing his pleas, his motion is facially insufficient because he did not allege that he would not have pleaded had he been aware that he faced habitual felony offender sentencing. See Newsome v. State, 704 So. 2d 213 (Fla. 2d DCA 1998). We therefore affirm the summary denial of his motion although we disagree with the trial court’s reasoning. This affirmance is, however, without prejudice to Finan’s right to file a facially sufficient motion. Because the time to file a motion pursuant to rule 3.850 expired while Finan’s appeal was pending in this court, he shall have sixty days from the issuance of the mandate in this case to file an amended motion.
Affirmed.
WHATLEY, A.C.J., and NORTHCUTT and CASANUEVA, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Caesar Orosco v. State, 801 So. 2d 303 (Fla. 2d DCA 2001)…2d DCA 1994). Therefore, our affirmance is without prejudice to Orosco’s right to file a properly sworn rule 3.850 motion. Any motion filed within sixty days of the issuance of the mandate shall be considered timely filed. See, e.g., Finan v. State, 787 So. 2d 64 (Fla. 2d DCA 2001) (allowing appellant sixty days to file facially sufficient rule 3.850 motion). Further, our affirmance is without prejudice to any right Orosco may have under Heggs to either file a facially sufficient rule 3.800(a) motion or a ru…
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Sanders v. State, 823 So. 2d 280 (Fla. 2d DCA 2002)…000) (en banc). Be [*281] cause the time for Sanders to seek such relief expired during the pendency of this appeal, any motion filed within sixty days of the issuance of the mandate in this case shall be considered timely filed. See Finan v. State, 787 So. 2d 64 (Fla. 2d DCA 2001). Affirmed. ALTENBERND and SALCINES, JJ., Concur.…
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Darby Houser v. State, 901 So. 2d 374 (Fla. 2d DCA 2005)…se the time to file a motion for postconviction relief pursuant to rule 3.850 expired while Houser’s appeal was pending in this court, he shall have sixty days from the issuance of the mandate in this case to file a 3.850 motion. See Finan v. State, 787 So. 2d 64 (Fla. 2d DCA 2001). Affirmed. CASANUEVA and CANADY, JJ., concur.…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Wilson, 658 So. 2d 521 (Fla. 1995)
- Newsome v. State, 704 So. 2d 213 (Fla. 2d DCA 1998)