ROBERT THOMAS NOWELL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Robert Thomas Nowell appealed the denial of his motion to correct an illegal sentence for felon in possession of a firearm. The court held that while his first claim lacked merit, his claim regarding lack of factual basis for the minimum mandatory enhancement was cognizable under Florida Rule of Criminal Procedure 3.850 and should be considered on remand if properly amended with an oath.
The court held that Nowell's first claim lacked merit, but his claim of lack of factual basis for the three-year minimum mandatory term was cognizable under Florida Rule of Criminal Procedure 3.850. However, the motion was facially insufficient because it was unsworn, so Nowell should be permitted to amend it by including an oath within thirty days.
[1] A claim challenging the factual basis for a minimum mandatory sentence imposed pursuant to a plea is cognizable under Florida Rule of Criminal Procedure 3.850.
[2] The enhancement provision of section 775.087(2)(a)(1), Florida Statutes, requires proof of actual possession of a firearm to apply.
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“in order to apply the enhancement provision of section 775.087(2)(a)(1), the State must prove actual possession”
Establishes the requirement of actual rather than constructive possession for the firearm enhancement to apply
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Join FLexlaw to unlock all legal intelligenceNowell, a convicted felon, pleaded guilty to felon in possession of a firearm. The trial court imposed the enhanced minimum mandatory term prescribed …
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Robert Thomas Nowell appeals from an order denying his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a), raising two grounds for relief. Nowell’s first claim has no merit. But Nowell’s claim that the sentencing court lacked a factual basis for imposing a minimum mandatory term for his firearm possession offense should have been considered pursuant to Florida Rule of Criminal Procedure 3.850, and we reverse and remand for the postconviction court to do so.
After Nowell, a convicted felon, entered a plea to felon in possession of a firearm, the trial court imposed the enhanced minimum mandatory term prescribed by section 775.087(2)(a)(l), Florida Statutes (2006). In his motion to correct his sentence, Nowell asserted that this minimum mandatory enhancement was not permissible because his possession of the firearm was only constructive, not actual. See Bundrage v. State, 814 So.2d 1133, 1134 (Fla. 2d DCA 2002) (holding that “in order to apply the enhancement provision of section 775.087(2)(a)(1), the State must prove actual possession”). The postconviction court denied this claim on the ground that it should have been raised on direct appeal. However, a claim of lack of factual basis for the three-year minimum mandatory term is cognizable under rule 3.850. State v. Mancino, 705 So.2d 1379, 1380-81 (Fla.1998) (holding that rule 3.850 is an appropriate means to challenge the minimum mandatory sentence imposed pursuant to a plea when there is no allegation that the sentence exceeds the maximum allowed by law); Morin v. State, 947 So.2d 1250, 1251 (Fla. 2d DCA 2007) (citing Mancino and further noting that the plea agreement’s form language would be insufficient, without more, to refute the claim).
In its present form, however, Nowell’s motion is not facially sufficient for consideration under rule 3.850. Although he filed his motion on the last available day before the two-year time limit barred his claim, the motion was unsworn. Nowell should therefore be permitted to amend his motion by including the required oath. See Spera v. State, 971 So.2d 754, 761 (Fla.2007).
Accordingly, we affirm the denial of claim one but reverse and remand for the postconviction court to dismiss claim two with leave for Nowell to amend his motion by including an oath within thirty days from the date that this opinion becomes final. If Nowell fails to do so, however, the postconviction court can deny the mo*1066tion on the merits. See Bloye v. State, 28 So.3d 137, 139 (Fla. 2d DCA 2010).
Affirmed in part; reversed in part; and remanded.
MORRIS and CRENSHAW, JJ., Concur.
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Citator
Authorities Cited
- Spera v. State, 971 So. 2d 754 (Fla. 2007)
- State v. Mancino, 705 So. 2d 1379 (Fla. 1998)
- Bundrage v. State, 814 So. 2d 1133 (Fla. 2d DCA 2002)
- Bloye v. State, 28 So. 3d 137 (Fla. 2d DCA 2010)
- Morin v. State, 947 So. 2d 1250 (Fla. 2d DCA 2007)