JOSEPH N. PERRY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Joseph Perry appealed the trial court's dismissal of his Rule 3.800(a) postconviction motion challenging his sentencing on two grounds: that his habitual violent felony offender sentence was illegally imposed and that his sentence on count two was never orally pronounced. The appellate court affirmed the dismissal, holding that the public defender appointed for appellate purposes lacked authority under Florida law to file the collateral sentencing challenge, but allowed Perry the right to file such a motion pro se.
The court held that the public defender lacked authority to file the Rule 3.800(a) motion because section 27.51, Florida Statutes, which outlines the duties of the public defender, did not authorize representation in collateral sentencing attacks. However, the dismissal was without prejudice to Perry's right to file such a motion pro se.
[1] A public defender appointed to represent a defendant on appeal is not authorized to file a collateral attack on the defendant's sentence.
[2] A defendant may file a motion challenging a sentence pursuant to Florida Rule of Criminal Procedure 3.800(a) pro se, even if represented by a public defender for appellat…
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Join FLexlaw to unlock all legal intelligence“Although the issues raised in Perry's rule 3.800(a) motion may be meritorious, the trial court did not err in finding that, under section 27.51, Florida Statutes (2002), which outlines the duties of the public defender, the public defender here was not authorized to file Perry's collateral attack.”
Establishes that despite potential merit, the public defender lacked statutory authority to file the collateral motion.
Previewing 1 of 2 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligencePerry was convicted after jury trial of attempted first-degree murder with a firearm and pleaded no contest to felonious possession of firearms. The t…
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DAVIS, Judge.
Joseph N. Perry challenges the trial court order dismissing his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a), in which he raised two sentencing issues. We affirm without prejudice to any right Perry may have to file such a motion pro se.
Perry was convicted after jury trial of attempted first-degree murder with a firearm, and he pleaded no contest to felonious possession of firearms. The trial court sentenced Perry to concurrent thirty-year terms of incarceration as a habitual violent felony offender. Perry subsequently filed a rule 3.850 motion alleging ineffective assistance of trial counsel, which was summarily denied by the trial court. On appeal, this court reversed in part and remanded for an evidentiary hearing. Perry v. State, 787 So. 2d 67 (Fla. 2d DCA 2001). On remand, following an evidentiary hearing, the trial court again denied Perry’s motion and appointed the Office of the Public Defender to assist him in bringing his appeal.
While his appeal was pending, Perry petitioned this court to relinquish jurisdiction to the trial court so that he could raise sentencing issues pursuant to rule 3.800(a). When this court granted that request, Perry’s attorney filed his motion challenging his sentence on two grounds: (1) that his habitual violent felony offender sentence was illegally imposed because at the time of his offense, such a sentence was not authorized for life felonies; and (2) that his sentence for count two was never orally pronounced. The trial court dismissed this motion as unauthorized in that the public defender was only appointed to represent Perry in the appellate proceedings and thus was not authorized to represent Perry in the collateral challenge of his sentence. Subsequently, this court affirmed the denial of Perry’s rule 3.850 motion, Perry v. State, No. 2D01-4349 (Fla. 2d DCA Jan. 23, 2004) (table decision), and Perry filed this appeal of the trial court’s dismissal of his rule 3.800(a) motion.
Although the issues raised in Perry’s rule 3.800(a) motion may be meritorious, the trial court did not err in finding that, under section 27.51, Florida Statutes (2002), which outlines the duties of the public defender, the public defender here was not authorized to file Perry’s collateral attack. Accordingly, we affirm the trial court’s dismissal of Perry’s rule 3.800(a) motion without prejudice to any right Perry may have to file such a motion pro se.
Affirmed.
WHATLEY and VILLANTI, JJ„ Concur.
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Citator
Cited By
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Baker v. State, 210 So. 3d 140 (Fla. 2d DCA 2016)…ight to a court-appointed lawyer.”); Williams v. State, 99 So. 3d 593, 595 (Fla. 2d DCA 2012) (“The duties of public defenders, as enumerated in section 27.51, Florida Statutes (2008), do not include postconviction representation.”); Perry v. State, 869 So. 2d 41, 42 (Fla. 2d DCA 2004) (affirming postconviction court’s dismissal of a rule 3.800(a) motion filed by a public defender because the public defender had only been appointed to represent the defendant on appeal and “under section 27.51 ... the public…
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Mann v. State, 937 So. 2d 722 (Fla. 3d DCA 2006)…itted to represent a defendant who was not under sentence of death in a collateral postconviction relief proceeding without being appointed to do so. In fact, the Second District Court of Appeal has recently held to the contrary. See Perry v. State, 869 So. 2d 41 (Fla. 2d DCA 2004)(holding that the public defender was not authorized to file a motion collaterally attacking the defendant’s sentence, and affirming the trial court’s dismissal of Perry’s Rule 3.800(a) motion filed by the public defender without p…
Authorities Cited
- Perry v. State, 787 So. 2d 67 (Fla. 2d DCA 2001)