LARRY HARRIS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Harris appealed the denial of his motion to correct an illegal sentence for attempted first-degree murder. The Fourth District affirmed the summary denial, finding that his argument based on Traylor v. State was inapplicable because Harris entered a nolo contendere plea to attempted premeditated murder rather than attempted felony murder.
The court affirmed the denial of Harris's motion, finding that Traylor v. State, the case upon which Harris relied, was inapplicable because Harris entered a nolo contendere plea to attempted premeditated murder rather than attempted felony murder in which use of a weapon was an element of the predicate felony.
[1] A motion to correct an illegal sentence may be denied as successive if the sole ground raised has been previously rejected.
[2] A defendant's nolo contendere plea to attempted premeditated murder renders the Traylor v. …
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Join FLexlaw to unlock all legal intelligence“Although similar, however, the ground raised in this motion was not identical to the previous challenges to the 50-year sentence for count III.”
The court noted that while Harris's argument was similar to prior motions, it was sufficiently distinguishable to merit separate consideration rather than outright rejection as merely successive.
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Join FLexlaw to unlock all legal intelligenceHarris was convicted of attempted first-degree murder with a deadly weapon (count III) and received a 50-year sentence. He filed a rule 3.800(a) motio…
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PER CURIAM.
We affirm the order summarily denying the rule 3.800(a) motion to correct illegal sentence, but not for the reason specified by the trial court.
The state argued that it should be denied as successive because the sole ground had been raised and rejected twice before, and attached copies of defendant’s prior rule 3.800(a) motions. The motion was denied for the reasons given in the state’s response. Although similar, however, the ground raised in this motion was not identical to the previous challenges to the 50-year sentence for count III.
In this motion, he claimed that count III, attempted first degree murder with a deadly weapon, could not be reclassified from a first degree felony to a life felony for use of the weapon because the weapon was an essential element of the predicate felony, citing Traylor v. State, 785 So. 2d 1179 (Fla.2000). Because he entered a nolo contendere plea to a charge of attempted premeditated murder, however, we find that Traylor is inapposite. Compare Jones v. State, 776 So. 2d 1117 (Fla. 5th DCA 2001) (distinguishing Traylor where defendant entered nolo contendere plea to attempted first degree murder from premeditated design, and was not charged with attempted felony murder in which use of a weapon was an element of the predicate felony). See also Theolet v. State, 801 So. 2d 972 (Fla. 4th DCA 2001) (affirming summary denial of motion for postconviction relief, challenging life sen tence for attempted first degree murder, reclassified as life felony; distinguishing Traylor where defendant did not allege state proceeded at trial on attempted felony murder theory and, at time of conviction, attempted felony murder was not a crime in Florida).
Affirmed.
FARMER, TAYLOR and MAY, JJ., concur.
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Emilio Noguez v. State (Fla. 3d DCA 2023)…PER CURIAM. Affirmed. See § 782.04(1), Fla. Stat. (2001); § 777.04(4)(b), Fla. Stat. (2001); § 775.087(1), Fla. Stat. (2001); Harris v. State, 983 So. 2d 662, 662– 63 (Fla. 4th DCA 2008); Moss v. State, 270 So. 3d 559, 560 (Fla. 1st DCA 2019).…
Authorities Cited
- Traylor v. State, 785 So. 2d 1179 (Fla. 2000)
- Theolet v. State, 801 So. 2d 972 (Fla. 4th DCA 2001)
- Jones v. State, 776 So. 2d 1117 (Fla. 5th DCA 2001)