CHARLES ASHE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Verbal notice of intent to seek habitual offender sentencing does not cure the state's failure to file timely written notice when a defendant enters an open plea of guilty.
[1] A trial court's summary denial of a postconviction motion is affirmed if the denial of at least one claim is proper.
[2] Failure to provide written notice of intent to seek habitual offender sentencing prior to an open plea of guilty renders the habitual offender sentence invalid.
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Join FLexlaw to unlock all legal intelligenceAppellant entered an open plea to robbery. The state announced its intent to seek habitual offender sentencing but failed to file timely written notic…
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PER CURIAM.
The appellant challenges the trial court’s order summarily denying his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the trial court’s denial of the appellant’s second claim without further discussion. Barrs v. State, 883 So. 2d 846 (Fla. 1st DCA 2004). However, because the state did not file written notice of its intent to sentence the appellant under the habitual offender statute prior to the appellant’s entering an open plea of guilty, we reverse the trial court’s summary denial of the first claim.
The appellant entered an open plea to robbery. Although the state announced its intent to seek habitual offender sentencing it did not timely file written notice as required by Section 775.084(3)(b)2, Florida Statutes (2003), and Ashley v. State, 614 So. 2d 486 (Fla.1993). The appellant contends that his plea was involuntary because he was sentenced as a habitual offender even though the state failed to file the requisite written notice of its intent to seek habitualization. The trial court denied this motion because the appellant had actual verbal notice of the state’s intent.
Actual verbal notice of intent to seek habitualization does not cure failure to file written notice of intent to seek habitualization where an open plea of guilty is entered. See Gray v. State, 829 So. 2d 986 (Fla. 1st DCA 2002); Pitts v. State, 805 So. 2d 1087 (Fla. 5th DCA 2002). However, on remand, the trial court should consider State v. Blackwell, 661 So. 2d 282 (Fla.1995) where the Florida Supreme Court held that a written plea agreement acknowledging potential habitualization signed by the defendant cures a failure to file written notice.
We reverse the trial court’s denial of the appellant’s motion and remand for attachments demonstrating the appellant had prior written notice of the state’s intent to habitualize or for an evidentiary hearing.
AFFIRMED in part, REVERSED in part, and REMANDED.
KAHN, POLSTON, and THOMAS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Stanford v. State, 69 So. 3d 1039 (Fla. 1st DCA 2011)…nt entered his plea. While the record does indicate that the state verbally informed the appellant that it would be seeking sentencing as a habitual felony offender, that fact does not cure the failure to timely file a written notice. Ashe v. State, 951 So. 2d 1023, 1023 (Fla. 1st DCA 2007). If the written plea agreement indicated a habitual felony offender sentence, the written notice requirement would have been moot. See State v. Blackwell, 661 So. 2d 282 (Fla.1995). However, in this case, the written agreem…
Authorities Cited
- Ashley v. State, 614 So. 2d 486 (Fla. 1993)
- State v. Blackwell, 661 So. 2d 282 (Fla. 1995)
- Pitts v. State, 805 So. 2d 1087 (Fla. 5th DCA 2002)
- Barrs v. State, 883 So. 2d 846 (Fla. 1st DCA 2004)
- Gray v. State, 829 So. 2d 986 (Fla. 1st DCA 2002)
- Pickett v. Fla. Elections Comm'n, 829 So. 2d 986 (Fla. 1st DCA 2002)