PAUL E. MOORE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A conviction for a non-existent crime is fundamental error that can be raised at any time, and the trial court erred in denying such a claim as untimely and successive.
Paul Moore appealed the summary denial of his motion for post-conviction relief, arguing he was convicted of a non-existent offense. Moore had entered…
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PER CURIAM.
Paul Moore appeals the summary denial of his motion for post-conviction relief. Fla. R.Crim. P. 3.850. The trial court found that the motion was untimely and successive because Moore had raised new claims that should have been raised in Moore’s prior motion. See Moore v. State, 879 So. 2d 62 (Fla. 4th DCA 2004). One of Moore’s new claims was that he was convicted of a non-existent offense. We reverse the denial of this claim, but affirm as to all other issues.
Moore entered a negotiated guilty plea to various offenses, including attempted aggravated assault on a law enforcement officer. Attempted aggravated assault on a law enforcement officer is not a crime in Florida. Merritt v. State, 712 So. 2d 384 (Fla.1998). A conviction for a non-existent crime is fundamental error that can be raised at any time, even if the error was “invited” by acceptance of a negotiated plea or by a request for jury instructions. Mundell v. State, 739 So. 2d 1201 (Fla. 5th DCA 1999); Fredericks v. State, 675 So. 2d 989 (Fla. 1st. DCA 1996).
One cannot be convicted of a non-existent offense. Achin v. State, 436 So. 2d 30 (Fla.1982). The conviction is illegal and cannot be allowed to stand. The trial court erred in denying this claim as untimely and successive.
We reverse and remand with instructions that the conviction and sentence for attempted aggravated assault on a law enforcement officer be vacated. The state shall have the option of withdrawing from the entire plea agreement. See Harkness v. State, 771 So. 2d 588 (Fla. 1st DCA 2000). Moore cannot challenge his plea as involuntary because the time limit under rule 3.850 has expired.
STONE, FARMER and KLEIN, JJ., concur.
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Hughes v. State, 22 So. 3d 132 (Fla. 2d DCA 2009)…l errors,” are so serious that they amount to a denial of substantive due process and may be raised at any time including for the first time in a postconviction motion. Hipp v. State, 650 So. 2d 91, 92 (Fla. 4th DCA 1995). See, e.g., Moore v. State, 924 So. 2d 840, 841 (Fla. 4th DCA 2006) (conviction for a non-existent crime); Pass v. State, 922 So. 2d 279, 281 (Fla. 2d DCA 2006) (application of facially unconstitutional statute); Smith v. State, 741 So. 2d 576, 577 (Fla. 1st DCA 1999) (violation of the prohi…
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White v. State, 973 So. 2d 638 (Fla. 4th DCA 2008)…e state did not effectively charge White with attempted felony murder, White’s due process rights were violated. A defendant can challenge the validity of a charging document for the first time on appeal in certain circumstances. In Moore v. State, 924 So. 2d 840, 841 (Fla. 4th DCA 2006), we held, “A conviction for a non-existent crime is fundamental error that can be raised at any time.... ” In addition, “a conviction on a charge not made by the indictment or information,” even if valid under Florida law, “…
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Haliburton v. State, 7 So. 3d 601 (Fla. 4th DCA 2009)…l errors,” are so serious that they amount to a denial of substantive due process and may be raised at any time including for the first time in a postconviction motion. Hipp v. State, 650 So. 2d 91, 92 (Fla. 4th DCA 1995). See, e.g., Moore v. State, 924 So. 2d 840, 841 (Fla. 4th DCA 2006) (conviction for a nonexistent crime); Pass v. State, 922 So. 2d 279, 281 (Fla. 2d DCA 2006) (application of facially unconstitutional statute); Smith v. State, 741 So. 2d 576, 577 (Fla. 1st DCA 1999) (violation of the prohib…
Previewing 3 of 13 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Achin v. State, 436 So. 2d 30 (Fla. 1982)
- Merritt v. State, 712 So. 2d 384 (Fla. 1998)
- Fredericks v. State, 675 So. 2d 989 (Fla. 1st DCA 1996)
- Mundell v. State, 739 So. 2d 1201 (Fla. 5th DCA 1999)
- Harkness v. State, 771 So. 2d 588 (Fla. 1st DCA 2000)
- Moore v. State, 879 So. 2d 62 (Fla. 4th DCA 2004)