JOHN MCKOWEN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a motion to correct an illegal sentence must affirmatively allege that the illegality is apparent from the face of the record.
[1] A motion to correct an illegal sentence under rule 3.800(a) of the Florida Rules of Criminal Procedure must allege that the sentencing error is apparent from the face of…
[2] A trial court may deny a motion to correct an illegal sentence if the motion is technically deficient for failing to allege that the error is apparent from the face of th…
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Join FLexlaw to unlock all legal intelligenceDefendant appealed the summary denial of his motion to correct an illegal sentence, arguing his habitual offender sentence was illegal under a specifi…
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PALMER, J.
John McKowen, (defendant) appeals the summary denial of his motion to correct illegal sentence filed pursuant to rule 3.800(a) of the Florida Rules of Criminal Procedure. The defendant was tried and convicted of committing the crime of attempted second degree murder of a law enforcement officer and subsequently sentenced as a habitual offender to a term of 30 years imprisonment. He was also convicted of aggravated battery of a law enforcement officer, but no sentence was imposed thereon. On direct appeal, this court affirmed the defendant’s convictions and sentence. See McKowen v. State, 792 So. 2d 1251 (Fla. 5th DCA 2001).
In his rule 3.800(a) motion, McKowen argued that his habitual offender sentence was illegal because section 775.0823 of the Florida Statutes (1999) required that he be sentenced pursuant to the Criminal Punishment Code. The trial court denied McKowen’s motion without explanation and McKowen thereafter timely filed this appeal.
Although McKowen notes that a sentence which is illegal on the face of the record can be corrected in a rule 3.800(a) proceeding, he does not expressly assert that it can be determined from the face of the instant record that his sentence is illegal. See State v. Mancino, 714 So. 2d 429 (Fla.1998)(holding that sentencing issue is cognizable in rule 3.800 proceeding when it is affirmatively alleged that the court records demonstrate on their face entitlement to relief). Accordingly, on that basis alone, the trial court may have denied McKowen’s motion as being technically deficient and we affirm on that basis. However, denial on that ground must be without prejudice. See Vaughan v. State, 769 So. 2d 530 (Fla. 5th DCA 2000) (holding that denial of rule 3.800(a) motion would be affirmed without prejudice to refile motion alleging that error is apparent from face of the record). Accordingly, the trial court’s order is affirmed, without prejudice to McKowen’s' filing a facially sufficient motion.
AFFIRMED without prejudice.
THOMPSON, C.J., and HARRIS, J., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Trizell E. Johnson v. State, 881 So. 2d 88 (Fla. 5th DCA 2004)…e prison). The order denying relief is REVERSED, and the case REMANDED to the trial court for the correction of defendant’s sentence. PETERSON and GRIFFIN, JJ., concur. . Cf. Fritznerv. State, 864 So. 2d 574 (Fla. 5th DCA 2004); McKowen v. State, 816 So. 2d 1254 (Fla. 5th DCA 2002).…
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Perez v. State, 840 So. 2d 1179 (Fla. 5th DCA 2003)…tencing indicated that the attempted murder count was scored as a Level 9 offense, with a sentencing range of 109.0 to 182.7 months incarceration. The state agrees this was error. Attempted second degree murder is a Level 8 offense. Saylor v. State, 816 So. 2d 1254 (Fla. 5th DCA 2002); Galdamez v. State, 804 So. 2d 619 (Fla. 3d DCA 2002). Nor is it subject to the one level increase for use of a firearm during the Heggs window period. See Salters v. State, 758 So. 2d 667 (Fla.2000); Saylor. However, scoring th…
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Fritzner v. State, 864 So. 2d 574 (Fla. 5th DCA 2004)…of his amended motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm because Fritzner failed to affirmatively allege that his claim of an illegal sentence can be determined from the face of the record. See McKowen v. State, 816 So. 2d 1254 (Fla. 5th DCA 2002). However, as in McKowen, our affirmance is without prejudice to Fritzner to file á facially sufficient motion pursuant to rule 3.800(a). AFFIRMED. SAWAYA, C.J., and PLEUS, J., 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. Mancino, 714 So. 2d 429 (Fla. 1998)
- Puerta Delfino-Ramirez v. State, 792 So. 2d 1251 (Fla. 5th DCA 2001)
- Vaughan v. State, 769 So. 2d 530 (Fla. 5th DCA 2000)