JOSEPH ROMEO, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Joseph Romeo appealed the trial court's denial of his Rule 3.800(a) motion challenging his sentence as a Violent Career Criminal (VCC). The appellate court affirmed in part and reversed in part, finding that Romeo's claim regarding whether his predicate offenses qualified under the VCC statute was cognizable and had not been previously adjudicated, but that his challenge to the legal sufficiency of the notice of enhancement could not be raised via Rule 3.800(a).
The court held that Romeo's claim regarding whether his predicate offenses qualified under the VCC statute was cognizable in a Rule 3.800(a) motion and had not been previously adjudicated, allowing successive motions on this issue. However, claims of legal insufficiency of a notice of enhancement cannot be raised by Rule 3.800(a) motion and the trial court properly denied relief on that issue.
[1] A claim that predicate offenses do not qualify under the Violent Career Criminal statute is cognizable in a motion to correct illegal sentence.
[2] Successive motions to correct illegal sentence are permissible if the claim has not been previously adjudicated on the merits.
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Join FLexlaw to unlock all legal intelligence“Successive Rule 3.800(a) motions are allowed, so long as the claim has not previously been adjudicated on the merits.”
Establishes the standard for when a defendant may file successive Rule 3.800(a) motions challenging an illegal sentence.
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Join FLexlaw to unlock all legal intelligenceJoseph Romeo was convicted of manslaughter and sentenced as a Violent Career Criminal (VCC) under Florida Statute § 775.084(1)(c), 1997. He filed a Ru…
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PER CURIAM.
This is an appeal of an order denying a motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm m part and reverse m part.
Defendant-appellant Joseph Romeo was convicted of manslaughter and sentenced as a Violent Career Criminal (VCC). See § 775.084(1)(c), Fla. Stat. (1997).* The defendant filed a Rule 3.800(a) motion in which he challenged his sentence as a VCC. The trial court denied the motion stating that the motion is duplicative of prior 3.800 motions and that “[djefendant has on at least 2 prior occasions raised these same issues which were denied and affirmed.” The defendant has appealed.
As a procedural matter, when there is a denial on the basis that the same issue has previously been disposed of on the merits, the correct procedure is to attach the previous motion and denial so it is made part of the postconviction record on appeal. See Lopez v. State, 946 So. 2d 46 (Fla. 3d DCA 2006). The trial court did not do so in this case.
The defendant’s main claim on this appeal is that he does not actually qualify as a VCC. He asserts that the predicate offenses relied on by the trial court in adjudicating him a VCC are not qualifying offenses under the VCC statute. Such a claim is cognizable in a Rule 3.800(a) motion. See Bover v. State, 797 So. 2d 1246 (Fla.2001).
In the exercise of discretion this court has taken judicial notice of its files regarding the defendant’s prior postconviction appeals. So far as this court can ascertain, the defendant has not previously raised this claim. Successive Rule 3.800(a) motions are allowed, so long as the claim has not previously been adjudicated on the merits. See State v. McBride, 848 So. 2d 287, 290-91 (Fla.2003). We therefore reverse the order now before us as to this claim and remand for consideration of the merits.
The defendant has raised a second attack on his VCC adjudication. He maintains that the notice of enhancement filed in his case was legally insufficient. This issue was raised in a previous postconviction motion, although it is not entirely clear whether it was adjudicated on the merits. In any event, a claim of legal insufficiency of a notice of enhancement cannot be raised by a Rule 3.800(a) motion. Reese v. State, 899 So. 2d 428, 429-30 (Fla. 3d DCA 2005); Cooper v. State, 817 So. 2d 934 (Fla. 3d DCA 2002). We affirm the trial court’s order insofar as it denied relief on the notice issue.
For the stated reasons, we affirm the denial order in part, reverse in part, and remand for further proceedings consistent herewith.
*
It appears that the date of the manslaughter offense was January 22, 1998.
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McDUFFIE v. State, 63 So. 3d 824 (Fla. 5th DCA 2011)…ccessive, but its order did not include record attachments showing the motion was, in fact, successive. McDuffie argues this deficiency mandates reversal of the order denying his motion. Ordinarily, we would be inclined to agree. See Romeo v. State, 965 So. 2d 197 (Fla. 3d DCA 2007). However, reversal is not warranted in this case because it is clear from the face of the motion that the grounds claimed therein are without merit as a matter of law. There is no requirement that a court make a finding that a hab…
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Johnson v. State, 975 So. 2d 630 (Fla. 4th DCA 2008)…sentence was denied as successive. We reverse and remand the matter for further proceedings in connection with Point I of the motion filed in July 2007. The records referenced do not demonstrate that this issue is successive. Compare Romeo v. State, 965 So. 2d 197 (Fla. 3d DCA 2007). On remand, the trial court may attach documents to show that the claim is successive, or consider the issue on the merits. STEVENSON, TAYLOR and MAY, JJ., concur.…
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Jenkins v. State, 994 So. 2d 1124 (Fla. 3d DCA 2007)…number 04-117. Although the trial court denied the claim as successive, it is not clear that the suc-cessiveness bar is applicable. See Fla. R.Crim. P. 3.850(f). The prior motion and order were not attached to the denial order. See Romeo v. State, 965 So. 2d 197 (Fla. 3d DCA 2007). Because the postcon-viction record now before us does not conclusively refute the defendant’s point two, I would remand for further proceedings on that point only. See Fla. R.App. P. 9.141(b)(2)(D).…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- State v. Antoine L. McBRIDE, 848 So. 2d 287 (Fla. 2003)
- Bover v. State, 797 So. 2d 1246 (Fla. 2001)
- Miller Seabrooks v. State, 817 So. 2d 934 (Fla. 4th DCA 2002)
- Cooper v. State, 817 So. 2d 934 (Fla. 3d DCA 2002)
- Carlton Tuggerson v. State, 899 So. 2d 428 (Fla. 5th DCA 2005)
- Lopez v. State, 946 So. 2d 46 (Fla. 3d DCA 2006)