TONY BOUNO, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The appellate court affirmed the trial court's denial of the motion to correct an illegal sentence.
Appellant filed a motion to correct an illegal sentence, alleging a vindictive sentence. The trial court denied the motion as not cognizable under Flo…
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TORPY, J.
Appellant challenges the order denying his motion to correct illegal sentence wherein he alleges that he was the victim of a vindictive sentence. The trial court denied the motion as not being cognizable under Florida Rule of Criminal Procedure 3.800(a). We agree and affirm.1 Reese v. State, 896 So. 2d 807 (Fla. 3d DCA 2005); Boyd v. State, 880 So. 2d 726 (Fla. 2d DCA 2004), review denied, 888 So. 2d 621 (Fla.2004).
In concluding as we have, we have not overlooked our recent opinion in Johnson v. State, 877 So. 2d 795 (Fla. 5th DCA 2004), wherein we remanded for further consideration a similar claim made pursuant to rule 3.800(a). A review of this court’s file in that case, however, reveals that the state never raised the procedural objection that is the basis of our holding today, and that issue was not addressed in the panel opinion. Instead, the only issue addressed in Johnson was whether the lower court had correctly applied the law of the case doctrine. Therefore, our opinion today does not conflict with Johnson. See Reese.
AFFIRMED.
GRIFFIN and MONACO, JJ., concur. . We further note that Appellant’s prior unsuccessful motion for postconviction relief under rule 3.850 raised this same claim. Bouno v. State, 827 So. 2d 1011 (Fla. 5th DCA 2002). We decline, therefore, to treat Appellant's motion as one asserted under rule 3.850.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Jackson v. State, 921 So. 2d 611 (Fla. 2006)…ourt of Appeal certified to be in direct conflict with the Fifth District Court of Appeal’s decision in Johnson v. State, 877 So. 2d 795 (Fla. 5th DCA 2004). See art. V, § 3(b)(4), Fla. Const. Subsequently, the Fifth District decided Bouno v. State, 900 So. 2d 672 (Fla. 5th DCA 2005), in which the Fifth District distinguished its prior opinion in Johnson and agreed with the Second District that a claim of vindictive sentencing is not cognizable in a motion to correct illegal sentence filed pursuant to Florida…
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Morales v. State, 909 So. 2d 478 (Fla. 3d DCA 2005)…review denied, 888 So. 2d 621 (Fla.2004). The Fifth District has recently announced that it too follows the rule that a claim of vindictive sentencing cannot be raised by a motion to correct illegal sentence under Rule 3.800(a). See Bouno v. State, 900 So. 2d 672 (Fla. 5th DCA 2005).2 If the defendant’s motion is treated as a motion under Florida Rule of Criminal Procedure 3.850, it is time-barred. Accordingly, we affirm the order denying the Rule 3.800(a) motion. Affirmed. . The published opinion indica…
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Martinez v. State, 904 So. 2d 473 (Fla. 3d DCA 2005)…tencing claim may not be raised in a motion to correct illegal sentence. See Gonzalez v. State, 897 So. 2d 551 (Fla. 3d DCA 2005); Reese v. State, 896 So. 2d 807 (Fla. 3d DCA 2005); Wright v. State, 891 So. 2d 618 (Fla. 3d DCA 2005); Bouno v. State, 900 So. 2d 672 (Fla. 5th DCA 2005). Affirmed.…
Previewing 3 of 8 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Boyd v. State, 880 So. 2d 726 (Fla. 2d DCA 2004)
- Johnson v. State, 877 So. 2d 795 (Fla. 5th DCA 2004)
- Boyd v. State, 888 So. 2d 621 (Fla. 2004)
- Evans Reese v. State, 896 So. 2d 807 (Fla. 3d DCA 2005)