WILLIAM ORTEGA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Ortega appealed the denial of his motion to correct an illegal sentence filed seven years after his guilty plea to drug possession charges. The court affirmed, holding that Ortega's claim of involuntary plea must be brought under Rule 3.850 rather than Rule 3.800, and his Rule 3.850 motion was untimely under the two-year limitation period.
The court affirmed the denial of Ortega's Rule 3.800 motion, holding that claims of involuntary pleas must be asserted via Rule 3.850, which contains a two-year time limitation that Ortega's motion violated without satisfying any available exceptions. The court affirmed without prejudice to allow Ortega to file a proper Rule 3.850 motion if he could meet its pleading and time requirements.
[1] A claim that a guilty plea was involuntary must be asserted in a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850, not a motion to correct…
[2] Motions for postconviction relief under Florida Rule of Criminal Procedure 3.850 are subject to a two-year time limitation, with specific exceptions.
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“To the extent that Ortega is indeed asserting that his plea was "involuntary," such a claim must be asserted by a motion filed pursuant to Florida Rule of Criminal Procedure 3.850.”
Establishes the proper procedural mechanism for challenging involuntary pleas versus illegal sentences.
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Join FLexlaw to unlock all legal intelligenceIn 2004, Ortega pleaded guilty to possession with intent to sell or deliver marijuana and was sentenced to two years' probation, which terminated in 2…
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Ortega seeks review of the trial court’s order denying his motion to correct illegal sentence. We affirm.
In 2004, Ortega was charged with, and pled guilty to, possession with intent to sell or deliver marijuana, in violation of section 893.13(l)(a)2., Florida Statutes (2004). He was placed on two years’ probation, which terminated in 2006.
In August of 2011, Ortega filed a motion to correct illegal sentence, pursuant to Florida Rule of Criminal Procedure 3.800. In his motion, Ortega contends his guilty plea was “involuntary,” based upon the recent decision by the United States District Court in Shelton v. Secretary, Department of Corrections, 802 F.Supp.2d 1289 (M.D.Fla. 2011).1
To the extent that Ortega is indeed asserting that his plea was “involuntary,” such a claim must be asserted by a motion filed pursuant to Florida Rule of Criminal Procedure 3.850. Johnson v. State, 60 So.3d 1045 (Fla.2011); Johnson v. State, 50 So.3d 77 (Fla. 3d DCA 2010).
There is no time requirement within which to file a motion to correct an illegal sentence pursuant to Rule 3.800(a).2 By contrast, Rule 3.850(b) contains a two-year time limitation, which renders Ortega’s motion, on its face, untimely. Although Rule 3.850 does provide exceptions to the two-year time limitation, none of the *348exceptions has been alleged in Ortega’s motion, nor does any appear to exist on the record before us. But see Rule 3.850(b)(2) (providing that a motion for postconviction relief may be filed more than two years after the judgment and sentence become final if it alleges that “the fundamental constitutional right asserted was not established within the period provided for herein and has been held to apply retroactively, and the claim is made within 2 years of the date of the mandate of the decision announcing the retroactivity ”) (emphasis added)).
We therefore affirm the trial court’s denial of Ortega’s motion to correct illegal sentence without prejudice for Ortega to file a proper motion for postconviction relief pursuant to Rule 3.850, should he be able to do so within the pleading and time requirements of that rule. We express no view on the merits of any such motion.
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Alvarez v. State, 88 So. 3d 430 (Fla. 3d DCA 2012)
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Gardner v. State, 89 So. 3d 1073 (Fla. 3d DCA 2012)
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Bryant v. State, 89 So. 3d 1073 (Fla. 3d DCA 2012)
Previewing 3 of 9 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Johnson v. State, 60 So. 3d 1045 (Fla. 2011)
- Jasper Little v. State, 77 So. 3d 722 (Fla. 3d DCA 2011)
- State v. Dwyer, 332 So. 2d 333 (Fla. 1976)
- Taylor v. State, 929 So. 2d 665 (Fla. 3d DCA 2006)
- Tunsil v. State, 929 So. 2d 665 (Fla. 3d DCA 2006)
- Johnson v. State, 50 So. 3d 77 (Fla. 3d DCA 2010)