DAVID A. BUTLER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Butler appeals the summary denial of his postconviction motions challenging his consecutive sentences for aggravated stalking and a probation violation based on a trespass conviction. The court affirmed in part and reversed in part, holding that Butler's challenge to his consecutive sentences was timely but his unsworn challenge to the underlying trespass conviction was not cognizable under the applicable rule.
Butler's challenge to his consecutive sentences was timely because the sentences became final for rule 3.850 purposes when the affirming mandate was issued on February 6, 2004, making the June 16, 2004 filing within the two-year period. However, Butler's unsworn challenge to the underlying trespass conviction was not cognizable under rule 3.800(a) because he was challenging the conviction itself, not the sentence.
[1] A postconviction motion challenging consecutive sentences is timely under Rule 3.850(b) if filed within two years of the issuance of the appellate court's affirming manda…
[2] A claim challenging an underlying conviction is not cognizable under Rule 3.800(a), which is limited to challenges to the legality of a sentence.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Because Butler's sentences became final for rule 3.850 purposes when the affirming mandate was issued by this court on February 6, 2004, Butler's post-conviction motion challenging his consecutive sentences, filed on June 16, 2004, was not untimely since it was filed within the two-year period provided by rule 3.850(b).”
Establishes the critical distinction between when convictions versus sentences become final for purposes of the two-year filing deadline.
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Join FLexlaw to unlock all legal intelligenceButler was convicted and sentenced on March 14, 2001, for aggravated stalking with consecutive sentences imposed. This court affirmed the conviction o…
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DAVIS, Judge.
David A. Butler , appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rules of Criminal Procedure 3.850 and 3.800(a), motion for reconsideration of sentence filed pursuant to rule 3.800(a), and the addendum to his rule 3.850 motion. We affirm in part, reverse in part, and remand.
In his motion for postconviction relief filed pursuant to rules 3.850 and 3.800(a), Butler claims that his consecutive sentences for aggravated stalking are illegal because the offenses occurred during a continuous criminal transaction. The post-conviction court dismissed this motion as untimely under rule 3.850 and as not cognizable under rule 3.800(a). The postcon-viction court was correct in determining that Butler’s challenges to his convictions, imposed on March 14, 2001, were untimely. However, because Butler’s sentences became final for rule 3.850 purposes when the affirming mandate was issued by this court on February 6, 2004, Butler’s post-conviction motion challenging his consecu tive sentences, filed on June 16, 2004, was not untimely since it was filed within the two-year period provided by rule 3.850(b). Accordingly, the order of the postconviction court dismissing Butler’s challenges to his sentences as untimely is reversed and the case is remanded for the postconviction court to consider Butler’s challenge to his consecutive sentences on the merits.
In his motion for reconsideration of sentence pursuant to rule 3.800(a), Butler raised two claims for relief. Butler’s first claim is identical to the claim addressed above. In his second claim, Butler alleges that the trial court relied on his criminal trespass conviction in circuit court case number CRC02-04969CFANO to determine he violated his probation and that the victim has since acknowledged that he was “admitted to the residence.”
Because Butler is challenging his underlying trespass conviction in CRC02-04969CFANO, not his sentence, this claim is not cognizable under rule 3.800(a). See Safrany v. State, 895 So. 2d 1145 (Fla. 2d DCA 2005). Although the motion could be considered timely filed under rule 3.850, because the motion was unsworn, his claim could not be considered as if filed pursuant to rule 3.850. See Fla. R.Crim. P. 3.850(c). Therefore, we affirm the postconviction court’s dismissal of Butler’s claim without prejudice to Butler raising this issue in a sworn, facially sufficient rule 3.850 motion. Any such motion will not be considered successive and will be considered timely if filed within thirty days from the date of issuance of this court’s mandate in this proceeding. See Woods v. State, 879 So. 2d 22 (Fla. 2d DCA 2004).
The postconviction court’s dismissal of Butler’s addendum to his rule 3.850 motion is affirmed without further comment.
Affirmed m part, reversed in part, and remanded.
KELLY and LaROSE, JJ., Concur.
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Butler v. State, 973 So. 2d 677 (Fla. 2d DCA 2008)…04, Mr. Butler filed a postconviction motion in case number CRC98-10959CFAMO-D challenging the consecutive sentences in that case, arguing that they were improper because the crimes occurred in a continuous criminal transaction. See Butler v. State, 917 So. 2d 244 (Fla. 2d DCA 2005) (reversing the summary denial of this claim as untimely and remanding for further proceedings). That motion was ultimately denied by the trial court on the merits, and that order was affirmed by this court. Butler v. State, 931 So…
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Octavious J. Crumby v. State, 66 So. 3d 1018 (Fla. 1st DCA 2011)…PER CURIAM. AFFIRMED. See Echeverria v. State, 949 So. 2d 331, 335 (Fla. 1st DCA 2007); Butler v. State, 917 So. 2d 244, 245 (Fla. 2d DCA 2005). BENTON, C.J., ROBERTS, and RAY, JJ., concur.…
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