JONATHON DEMOSTHENES, A/K/A FRITZ DEMOSTHENES, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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CORTIÑAS, Judge.
The defendant appeals the trial court’s denial of his motion to correct an illegal sentence under Fla. R.Crim. P. 3.800(a). Defendant claims he is entitled to relief on the ground that the trial court erred by using a 1994 case as a qualifying prior conviction for habitual offender purposes. The defendant correctly acknowledges that this issue has been previously addressed and decided in Turner v. State, 891 So. 2d 1215 (Fla. 3d DCA 2005)(adopt-ing the reasoning of McCall v. State, 862 So. 2d 807 (Fla. 2d DCA 2003)). These cases held that the sanction of probation may count towards the calculation of the sentence under the habitual felony offender statute, section 775.084, Florida Statutes. We certify direct conflict with Richardson v. State, 884 So. 2d 950 (Fla. 4th DCA 2003).
Affirmed.
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State v. Mendiola, 919 So. 2d 471 (Fla. 3d DCA 2005)…be cured by treating the order as one "mitigat [*473] ing” the sentence because the jurisdictional time for mitigation had long since expired. See Fla. R.Crim. P. 3.800(c)(court may reduce or modify legal sentence within 60 days); Simmons v. State, 907 So. 2d 646 (Fla. 3d DCA 2005).…
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Curtis v. State, 915 So. 2d 733 (Fla. 2d DCA 2005)…n v. State, 613 So. 2d 496 (Fla. 2d DCA 1993); Singletary v. Marchetti, 691 So. 2d 65 (Fla. 3d DCA 1997). Mr. Curtis’s motion was filed well beyond the sixty-day period, and the trial court had no authority to grant him relief. See Simmons v. State, 907 So. 2d 646 (Fla. 3d DCA 2005); see also State v. Mendiola, 30 Fla. L. Weekly D2039, — So. 2d-, 2005 WL 2088008 (Fla. 3d DCA Aug.31, 2005) (defect in sentence credit could not be cured by treating the order as one “mitigating” the sentence because the jurisdict…
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)
- Turner v. State, 891 So. 2d 1215 (Fla. 3d DCA 2005)