LESTER GRAY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 5th DCA | 2003-02-21
No. 5D02-3964
SAWAYA and PLEUS, JJ., concur.
837 So. 2d 612 Florida District Court of Appeal, Fifth District (2003) Positive Treatment
Cited by 2 cases
Topics
Attempted Burglary Of A Structure Misdemeanor Classification Felony Vs. Misdemeanor Classification Felony Classification

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Opinion of the Court
SHARP, W., J.

We affirm the trial court’s summary denial of Gray’s motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a) which asserts he was inappropriately sentenced as an habitual offender. At the time Gray was sentenced in 1985 for a crime committed in 1982, only one prior felony conviction was required in order for the trial court to classify a defendant as an habitual offender. See § 775.084(l)(a)l.a., Fla. Stat. (1981).

An habitual offender sentence can be corrected in a rule 3.800(a) proceeding if the error is apparent on the face of the record. See Bover v. State, 797 So. 2d 1246 (Fla.2001). Gray argues here that the pri-or felony conviction used in this case to merit his habitual offender sentence was attempted burglary of a structure and since the structure was unoccupied, the crime was a misdemeanor of the first degree and not a felony. See §§ 810.02(3); 777.04(4), Fla. Stat. (1981).

However, in making its habitual offender findings, the sentencing court did not specify whether the structure was occupied. The sentencing court, however, found that defendant had been convicted of the prior felony of attempted burglary of a structure.

Thus it is not clear on the face of this record that Gray was improperly classified as an habitual offender. AFFIRMED.

SAWAYA and PLEUS, JJ., concur.

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  • Smith v. State, 861 So. 2d 1292 (Fla. 5th DCA 2004)
    …0, Florida Statutes, which authorizes correctional officers to administer oaths. In this case there is no statement that the facts in the motion are true and correct. Therefore, the trial court’s order must be affirmed. See, e.g., Katwaroo v. State, 837 So. 2d 612 (Fla. 5th DCA 2003). This court’s records also establish that the defendant is appealing the revocation of probation entered on July 9, 2003. This is also the subject of his rule 3.850 motion. Although the appeal was dismissed on October 22, 2003,…
  • Latarsa White v. State, 60 So. 3d 1101 (Fla. 5th DCA 2011)
    …aring is required to address this claim, it may not be raised in a rule 3.800(a) proceeding. See id. at 1251 n. 5. (recognizing limitations of rule 3.800(a) proceeding, including its general prohibition against evi-dentiary hearings); Gray v. State, 837 So. 2d 612 (Fla. 5th DCA 2003). Ms. White also alleged that her sentence does not accurately reflect the jail and prison credit that she has earned. The trial court’s order did not address this claim. Notwithstanding, Ms. White does not present a facially suf…

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