LAWRENCE MORGAN, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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A motion to correct an illegal sentence under Rule 3.800(a) is not the proper procedure for challenging a conviction or a claim involving factual issues outside the record.
Defendant filed a motion to correct an illegal sentence, arguing the statute of limitations had expired on certain counts prior to the information bei…
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PER CURIAM.
Lawrence Morgan appeals an order denying his motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a). We affirm.
Defendant-appellant Morgan entered into a plea bargain on six counts of an information. Thereafter he filed a motion to correct illegal sentence, arguing that the statute of limitations had expired on counts three, five, and six prior to the time that the information was filed. He requested that the sentences be vacated on those counts, and the charges dismissed. He did not, however, request withdrawal of the plea. The trial court denied the motion and the defendant has appealed.
First, a motion to correct illegal sentence is an appropriate procedure for challenging a sentence, but not a conviction. See Wiley v. State, 604 So. 2d 6, 7 (Fla. 1st DCA 1992); State v. Spella, 567 So. 2d 1051, 1052 (Fla. 5th DCA 1990). Since the defendant is attempting to vacate his convictions as well as sentences, the appropriate procedure is a motion under Florida Rule of Criminal Procedure 3.850.
Second, we agree with Judge Bar-zee that the statute of limitations claim that the defendant attempts to raise involves a factual issue which cannot be determined from the face of the record and thus cannot be brought under Rule 3.800(a). That is so because the three-year statute of limitations cited by the defendant is subject to being extended for an additional three years “when the defendant is continuously absent from the state or has no reasonably ascertainable place of abode or work within the state.” § 775.15(6), Fla. Stat. (1997). Since the information was filed within the period of the three-year extension (if applicable), it would require a factual inquiry to determine whether there was a time bar or not. Thus, under the circumstances present here, the motion would be cognizable only under Rule 3.850, as it requires a factual determination.
Affirmed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Riviere v. State, 965 So. 2d 845 (Fla. 2d DCA 2007)…that the statute of limitations expired before the State filed charges against him. The postconviction court correctly found that Riviere’s allegation should have been raised in a rule 3.850 motion. See Fla. R.Crim. P. 3.850(a)(1); Morgan v. State, 888 So. 2d 128 (Fla. 3d DCA 2004) (holding that the defendant’s claim that the statute of limitations had expired on several counts before the State filed its information was an attack on both his conviction and sentence and should be raised pursuant to rule 3.850…
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McGREGOR v. State, 933 So. 2d 1244 (Fla. 1st DCA 2006)…evidence in the record showing that the state conducted a reasonable search in an attempt to locate the appellant so it is unclear whether the time period could have been extended by three years. See § 775.15(6), Fla. Stat. (1995); Morgan v. State, 888 So. 2d 128, 129 (Fla. 3d DCA 2004)(holding that an evidentiary healing would be required to determine whether the statute of limitations would have been extended for an additional three years). Even if the additional time was applicable to the appellant’s case…
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Smith v. State (Fla. 3d DCA 2024)
Authorities Cited
- State v. Spella, 567 So. 2d 1051 (Fla. 5th DCA 1990)
- Wiley v. State, 604 So. 2d 6 (Fla. 1st DCA 1992)