CHUTNEY OXENDINE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a motion to correct an illegal sentence under Rule 3.800(a) cannot be used to challenge the validity of a conviction based on a prior offense, as such claims are waived by a nolo contendere plea and must be raised in a timely motion under Rule 3.850.
Appellant pleaded nolo contendere to felony driving while license suspended (DWLS) charges. He argued that a prior misdemeanor DWLS conviction should …
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GRIFFIN, J.
Appellant appeals the summary denial of his Rule 3.800(a) motion to correct illegal sentence.1 In St. Johns County, three of appellant’s cases were consolidated, and appellant entered nolo contendere pleas to all charges including two separate offenses of felony driving while license suspended, revoked or cancelled (“DWLS”). Appellant now claims that he should not have been convicted of these felonies because one of the prior DWLS misdemeanor convictions should not have been used to reclassify the current offenses to felonies. Appellant asserts that his prior offense was committed under a previous statutory version of DWLS which did not require “knowledge” as an element. See generally Huss v. State, 771 So. 2d 591 (Fla. 1st DCA 2000).
Rule 3.800(a) provides a remedy for the correction of illegal sentences. Appellant’s argument is an attack on his DWLS convictions as he claims he should have been convicted of misdemeanors, not felonies. Because appellant entered nolo contendere pleas to two felony DWLS charges, this issue was waived. Appellant’s remedy would have been a timely 3.850 motion alleging involuntary plea based on ineffective assistance of counsel. See Caples v. State, 790 So. 2d 1143 (Fla. 5th DCA 2001).
AFFIRMED.
SHARP, W., and PETERSON, JJ., concur. . Appellant mistakenly characterizes his motion to correct illegal sentence as being filed pursuant to "Rule 3.850(a)." The instant motion could not be treated as a 3.850 motion as it would be untimely. Appellant’s direct appeal resulted in an affirmance, the mandate issuing on Februaty 9, 2001. (Appeal No. 5D00-1619). Appellant’s motion was "filed” under the mailbox rule more than two years later on April 9, 2003. See Fla. R.Crim. P. 3.850(b).
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Thompson v. State, 887 So. 2d 1260 (Fla. 2004)…misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083. . It appears to me that the Fifth District applied the correct analysis to the issue of the application of Huss in a later postconviction case, Oxendine v. State, 852 So. 2d 286 (Fla. 5th DCA 2003).…
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Beveritt v. State, 931 So. 2d 946 (Fla. 5th DCA 2006)…PER CURIAM. AFFIRMED. See Oxendine v. State, 852 So. 2d 286 (Fla. 5th DCA 2003). ORFINGER, TORPY and LAWSON, JJ., concur.…
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McLEOD v. State, 890 So. 2d 553 (Fla. 5th DCA 2005)…hat Mr. McLeod is not challenging his sentence. Instead, he is attempting to challenge his conviction. A challenge to a conviction is not cognizable under Rule 3.800(a). See e.g., Cook v. State, 885 So. 2d 911 (Fla. 5th DCA 2004); Oxendine v. State, 852 So. 2d 286 (Fla. 5th DCA 2003). AFFIRMED. PLEUS, MONACO and TORPY, JJ., concur.…
Previewing 3 of 7 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Huss v. State, 771 So. 2d 591 (Fla. 1st DCA 2000)
- Caples v. State, 790 So. 2d 1143 (Fla. 5th DCA 2001)