MICHAEL BARRETT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE

Fla. 4th DCA | 2013-10-16
No. 4D12-2702
GROSS, TAYLOR and LEVINE, JJ., concur.
123 So. 3d 665 Florida District Court of Appeal, Fourth District (2013) Positive Treatment
Cited by 2 cases
Topics
Written Judgment And Sentence Cognizable Claim Rule 3.800(A) Oral Pronouncement Of Sentence

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Opinion of the Court
PER CURIAM.

PER CURIAM.

Michael Barrett filed a petition for writ of habeas corpus with two claims. The petition was summarily denied. On appeal, he argues that the trial court should have treated his petition as a motion filed under Rule 3.800. We agree in part.

The first issue raised in the petition alleged trial court error in the jury instruction. Because this issue could have been raised on appeal, the claim was not cognizable in a postconviction motion. See Waterfield v. State, 1 So.3d 235, 237 (Fla. 4th DCA 2008). The second issue, however, alleged a discrepancy between the written sentence and the sentence that was orally imposed. In particular, Barrett alleged that the court never orally imposed a habitual felony offender (HFO) designation. Because this type of discrepancy can be challenged in a Rule 3.800(a) motion, we i’everse and remand with direction to treat the claim as such. See State v. Akins, 69 So.3d 261, 268 (Fla.2011) (holding that modification of judgment and sentence to reflect an HFO designation that was not orally pronounced at sentencing violated double jeopardy and constituted an illegal sentence).

Affirmed in part; Reversed in part and Remanded.

GROSS, TAYLOR and LEVINE, JJ., concur.

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Cited By

  • Barrett v. State, 150 So. 3d 803 (Fla. 4th DCA 2014)
    …successful postconviction motions and petitions, appellant presented his claim that the trial court failed to orally impose the HFO designation. This court remanded the trial court’s initial denial because the claim was cognizable. Barrett v. State, 123 So. 3d 665 (Fla. 4th DCA 2013) (citing State v. Akins, 69 So. 3d 261, 268 (Fla.2011) (holding that modification of judgment and sentence to reflect an HFO designation that was not orally pronounced at sentencing violated double jeopardy and constituted an ille…

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