GLENN DALE HARPER, JR., APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Court reversed denial of motion to correct illegal sentence because trial court improperly treated it as successive when the prior postconviction motion was denied as untimely rather than on the merits, but remanded for dismissal without prejudice due to facial insufficiency of the motion.
A motion to correct illegal sentence under Rule 3.800(a) cannot be denied as successive merely because a prior Rule 3.850 motion raising the same claim was denied as untimely without reaching the merits.
[1] A motion to correct illegal sentence under Rule 3.800(a) is not successive merely because a prior Rule 3.850 postconviction motion raising the same claim was denied as un…
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Join FLexlaw to unlock all legal intelligenceHarper was sentenced to consecutive habitual felony offender sentences. He filed a Rule 3.850 postconviction motion raising the illegality claim, whic…
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SILBERMAN, Judge.
Glenn Dale Harper, Jr., appeals the trial court’s denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 8.800(a). We reverse and remand with instructions.
Harper claimed that his consecutive habitual felony offender sentences were illegally imposed. See Hale v. State, 630 So. 2d 521 (Fla.1993). The trial court denied the motion as successive, noting that Harper had previously raised the claim in a motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. However, the rule 3.850 motion had been denied as untimely and was not determined on the merits. Accordingly, the trial court should not have denied the rule 3.800(a) motion as successive. See Wright v. State, 741 So. 2d 1146, 1147 (Fla. 2d DCA 1999). Nevertheless, Harper’s rule 3.800 motion is facially insufficient because he did not affirmatively allege that the court records demonstrate on their face an entitlement to relief. See Fla. R.Crim. P. 3.800(a); Tyson v. State, 852 So. 2d 428, 429 (Fla. 2d DCA 2003).
Therefore, we reverse the order denying the rule 3.800 motion and remand for entry of an order of dismissal, which shall be without prejudice to any right Harper may have to file a facially sufficient motion pursuant to rule 3.800(a).
Reversed and remanded with instructions.
CASANUEVA and DAVIS, JJ., Concur.
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Citator
Cited By
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Poole v. State, 935 So. 2d 643 (Fla. 2d DCA 2006)…ror in the order the [sic] was given.” Poole did not affirmatively allege that the court records demonstrate on their face an entitlement to relief. See Fla. R.Crim. P. 3.800(a); Marshall v. State, 907 So. 2d 682 (Fla. 2d DCA 2005); Harper v. State, 905 So. 2d 280 (Fla. 2d DCA 2005). Further, it is unclear what jail credit he claims he did not receive or specifically what entitles him to relief under rule 3.800. Thus, we conclude that his motion is facially insufficient. In its order, the postconviction cou…
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Rowe v. State, 932 So. 2d 1291 (Fla. 2d DCA 2006)…re, we reverse the order denying the rule 3.800(a) motion and remand for entry of an order of dismissal without prejudice to any right Rowe may have to file a facially sufficient motion for jail credit pursuant to rule 3.800(a). See Harper v. State, 905 So. 2d 280 (Fla. 2d DCA 2005). Such motion shall not be considered successive. Reversed and remanded with instructions. KELLY and WALLACE, JJ„ Concur.…
Authorities Cited
- Hale v. State, 630 So. 2d 521 (Fla. 1993)
- Wright v. State, 741 So. 2d 1146 (Fla. 2d DCA 1999)
- Clellan Tyson v. State, 852 So. 2d 428 (Fla. 2d DCA 2003)