ANDRE BRUNACHE, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that a motion to correct an illegal sentence under Rule 3.800(a) is not the proper vehicle for claims regarding resentencing presence or gain time awards.
Andre Brunache appealed an order denying his motion to correct an illegal sentence. He argued he should have been present at his resentencing and that…
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PER CURIAM.
Andre Brunache appeals an order denying his motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a). We affirm.
Defendant-appellant Brunache maintains that he should have been personally present when he was resentenced in 2000 under Heggs v. State, 759 So. 2d 620 (Fla.2000). We agree with the trial court that this issue is one which must be brought under Florida Rule of Criminal Procedure 3.850, and cannot be brought under Florida Rule of Criminal Procedure 3.800(a). When the defendant’s Rule 3.800(a) motion is treated as a Rule 3.850 motion, it is time-barred.
Second, to the extent that the defendant maintains that he is not being awarded the correct amount of gain time by the Department of Corrections, the defendant must first exhaust his administrative remedies within the Department and if dissatisfied, may thereafter seek appellate review. See Richmond v. State, 876 So. 2d 1277 (Fla. 3d DCA 2004); Marshall v. State, 796 So. 2d 631, 632 (Fla. 3d DCA 2001). Although the question is not now before us, the defendant appears to have a mistaken impression regarding the gain time law. See Rivera v. State, 790 So. 2d 584 (Fla. 3d DCA 2001).
Affirmed.
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Quintanilla v. State, 913 So. 2d 687 (Fla. 3d DCA 2005)…uise of a motion for reconsideration, was effectively a second 3.850 motion for post-conviction relief. However, this motion was filed well outside of the two-year limitation period for same, and was therefore untimely. See, e.g., Brunache v. State, 901 So. 2d 412, 413 (Fla. 3d DCA 2005)(when defendant’s motion is treated as a Rule 3.850 motion and falls outside the two-year time period, it is time barred). As time-barred, the motion for post-conviction relief was properly denied, and, thus, we affirm.…
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Guridi v. State, 959 So. 2d 280 (Fla. 3d DCA 2007)…from successive review. State v. McBride, 848 So. 2d 287, 291 (Fla.2003). Moreover, such a claim was raisa-ble only via a motion filed pursuant to Florida Rule of Criminal Procedure 3.850 and is therefore timebarred. See Bru- [*282] nache v. State, 901 So. 2d 412, 413 (Fla. 3d DCA 2005); Fla. Bar Re Amendment to Rules of Crim. P. (Rule 3.850), 460 So. 2d 907 (Fla.1984). It is abundantly clear that appellant has been serially abusing the post-conviction process. See Johnson v. State, 915 So. 2d 682, 684 (Fla…
Authorities Cited
- Heggs v. State, 759 So. 2d 620 (Fla. 2000)
- Marshall v. State, 796 So. 2d 631 (Fla. 3d DCA 2001)
- Rivera v. State, 790 So. 2d 584 (Fla. 3d DCA 2001)
- Hayes v. State, 876 So. 2d 1277 (Fla. 3d DCA 2004)