ROBERT EY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court affirmed its prior holding that a claim of vindictive sentencing is not rateable in a motion to correct an illegal sentence under rule 3.800(a).
The appellant sought to raise a claim of vindictive sentencing in a motion to correct an illegal sentence. The trial court denied the motion. The appe…
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PER CURIAM.
Affirmed. See Gipson v. State, 616 So. 2d 992 (Fla.1993); Boyd v. State, 880 So. 2d 726 (Fla. 2d DCA 2004); McCall v. State, 862 So. 2d 807 (Fla. 2d DCA 2003); Sigafoos v. State, 825 So. 2d 529 (Fla. 2d DCA 2002); Cook v. State, 816 So. 2d 773 (Fla. 2d DCA 2002); Caraballo v. State, 805 So. 2d 882 (Fla. 2d DCA 2001); Shaw v. State, 780 So. 2d 188 (Fla. 2d DCA 2001); State v. Spriggs, 754 So. 2d 84 (Fla. 4th DCA 2000).
After this court held in Boyd that a claim of vindictive sentencing is not rateable in a motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a), the Fifth District Court of Appeal in Johnson v. State, 877 So. 2d 795 (Fla. 5th DCA 2004), reversed a circuit court order denying a rule 3.800(a) motion and remanded for consideration of the claim of vindictive sentencing raised in the motion. We certify direct conflict with Johnson.
Also as this court did in McCall, we certify direct conflict with Richardson v. State, 884 So. 2d 950, 2003 WL 21697171 (Fla. 4th DCA July 23, 2003). This affir-mance is without prejudice to any right Mr. Ey might have to file with the circuit court a timely and facially sufficient sworn motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850 or to file with this court a timely and facially sufficient sworn petition alleging ineffective assistance of appellate counsel pursuant to Florida Rule of Appellate Procedure 9.141(c).
Affirmed; conflict certified.
FULMER, COVINGTON, and VILLANTI, JJ., Concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Petruny v. State, 884 So. 2d 312 (Fla. 4th DCA 2004)…d any exist. See Puskac, 872 So. 2d at 1008. Additionally, we again certify conflict with McCall and subsequent cases from the Second District Court of Appeal.1 GUNTHER, WARNER and GROSS, JJ., concur. . See, e.g., Ey v. State, 2004 WL 2008503, 884 So. 2d 376 (Fla. 2d DCA Sept. 10, 2004), and cases cited therein.…
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Taylor v. State, 897 So. 2d 495 (Fla. 3d DCA 2005)…DCA 1994) (citing State v. F.G., 630 So. 2d 581, 583 (Fla. 3d DCA 1993), opinion adopted, 638 So. 2d 515 (Fla.1994)) (citation omitted). See also Wright v. State, 891 So. 2d 618, No. 3D04-2789 (Fla. 3d DCA opinion filed Jan. 26, 2005); Ey v. State, 884 So. 2d 376 (Fla. 2d DCA 2004); Boyd v. State, 880 So. 2d 726, 727-28 (Fla. 2d DCA), rev. denied, 888 So. 2d 621 (Fla.2004). We comment briefly on two recent cases from this court which addressed vindictive sentencing claims which had been brought under Rule 3…
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Galindez v. State, 892 So. 2d 1231 (Fla. 3d DCA 2005)…ing. Under this court’s precedents, a vindictive sentencing claim cannot be made by means of a Rule 3.800(a) motion. See Wright v. State, 891 So. 2d 618 (Fla. 3d DCA 2005); Valencia v. State, 645 So. 2d 1085 (Fla. 3d DCA 1994); see also Ey v. State, 884 So. 2d 376 (Fla. 2d DCA 2004); Boyd v. State, 880 So. 2d 726 (Fla. 2d DCA), review denied, 888 So. 2d 621 (Fla. 2004). We certify direct conflict with Johnson v. State, 877 So. 2d 795 (Fla. 5th DCA 2004). Affirmed; direct conflict certified.* * We have…
Authorities Cited
- Erick Richardson v. State, 884 So. 2d 950 (Fla. 4th DCA 2003)
- McCALL v. State, 862 So. 2d 807 (Fla. 2d DCA 2003)
- Caraballo v. State, 805 So. 2d 882 (Fla. 2d DCA 2001)
- Boyd v. State, 880 So. 2d 726 (Fla. 2d DCA 2004)
- Cook v. State, 816 So. 2d 773 (Fla. 2d DCA 2002)
- Shaw v. State, 780 So. 2d 188 (Fla. 2d DCA 2001)
- Johnson v. State, 877 So. 2d 795 (Fla. 5th DCA 2004)
- Gipson v. State, 616 So. 2d 992 (Fla. 1993)
- Sigafoos v. State, 825 So. 2d 529 (Fla. 2d DCA 2002)
- State v. Spriggs, 754 So. 2d 84 (Fla. 4th DCA 2000)