FELIX A. SMITH, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Felix Smith appealed an order denying his rule 3.800 motion for post-conviction relief and barring future filings. The court reversed, finding the trial court erred in designating the motion as successive without following proper procedure and that Smith's claims regarding drug offender probation conversion and sentencing discrepancies were not actually successive and merited consideration on the merits.
The court held that the trial court erred in barring Smith from filing further motions without issuing a show cause order and opportunity to respond as required by Spencer. Smith's motion was not successive because his challenge to drug offender probation was facially sufficient and his sentencing claim, though previously raised, was not considered on the merits when prior case law prohibited such claims and was subsequently resolved differently by the Florida Supreme Court.
[1] A trial court must issue a show cause order to provide notice and an opportunity to respond before barring a defendant from filing future postconviction motions.
[2] A challenge to drug offender probation is not successive and is facially sufficient if it meets the requirements of rule 3.800.
Previewing 2 of 5 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“if the trial court wants to bar Smith from filing further postconviction motions, it must follow the dictates of Spencer, and provide him with notice and an opportunity to respond through issuance of a show cause order.”
Establishes the procedural requirement that must be followed before imposing sanctions that bar future filings.
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Join FLexlaw to unlock all legal intelligenceSmith filed a rule 3.800 motion for post-conviction relief challenging his drug offender probation status and raising a discrepancy between the oral a…
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Felix A. Smith appeals an order denying his rule 3.800 motion for post-conviction relief as successive and barring him from any future filings. State v. Spencer, 751 So.2d 47 (Fla.1999). Smith argues that the trial court erred in finding his motion successive and when imposing the sanctions without first issuing an order to show cause. We agree and reverse.
As the State recognizes within its response to this court, if the trial court wants to bar Smith from filing further postconviction motions, it must follow the dictates of Spencer, and provide him with notice and an opportunity to respond through issuance of a show cause order. O’Berry v. State, 46 So.3d 105 (Fla. 4th DCA 2010). However, our review of the motion and the State’s response supports Smith’s position that his challenge to his drug offender probation is not successive and is facially sufficient. Jackson v. State, 47 So.3d 378 (Fla. 5th DCA 2010). The State concedes that the case should be remanded so that Smith’s drug offender probation can be converted to regular probation with any appropriate conditions, as determined by the trial court.
Within another point, Smith challenges a discrepancy between the oral and the written sentence with respect to his habitual offender sentencing. Though Smith previously raised this claim, he did so when this court had held that this type of sentencing error could not be raised in a rule 3.800(a) motion. Campbell v. State, 718 So.2d 886 (Fla. 4th DCA 1998). At the time there was conflict among the districts. The Florida Supreme Court has since resolved that conflict and held that a discrepancy between the oral and written sentence is an illegal sentence that can be raised in a rule 3.800(a) motion. Williams v. State, 957 So.2d 600 (Fla.2007). This record does not show that Smith’s claim was ever considered on the merits. Harris v. State, 995 So.2d 1128 (Fla. 4th DCA 2008). Consequently, it did not warrant the sanction imposed and the merits of the claim should be reviewed.
In sum, we reverse the order sanctioning Smith for filing successive and repetitive motions to correct an illegal sentence. We also reverse the order that rejected Smith’s claims as successive and remand the case for further consideration as discussed. If Smith is to be resentenced and the trial court will exercise discretion, at least in connection with the probationary terms, Smith has a right to be present and represented.
Reversed and Remanded.
GROSS, DAMOORGIAN and CIKLIN, JJ., concur.
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Citator
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Smith v. State, 123 So. 3d 646 (Fla. 4th DCA 2013)…PER CURIAM. Affirmed. Concerning the conversion of appellant’s drug offender probation to regular probation with special conditions, see Smith v. State, 71 So. 3d 246 (Fla. 4th DCA 2011), the trial court’s order on remand [*647] reflects it already has undertaken to order a resentencing hearing, but appellant argues the hearing has not yet been set. As to that ground, his remedy is to bring the matter to the tria…
Authorities Cited
- State v. Spencer, 751 So. 2d 47 (Fla. 1999)
- Williams v. State, 957 So. 2d 600 (Fla. 2007)
- Campbell v. State, 718 So. 2d 886 (Fla. 4th DCA 1998)
- Harris v. State, 995 So. 2d 1128 (Fla. 4th DCA 2008)
- O'Berry v. State, 46 So. 3d 105 (Fla. 4th DCA 2010)
- Jackson v. State, 47 So. 3d 378 (Fla. 5th DCA 2010)