ALON D. SIMS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Alon Sims appealed the summary denial of his successive rule 3.850 motion challenging his conviction and habitual violent felony offender sentence. The Fourth District affirmed, finding his grounds either not cognizable or without merit.
The court affirmed the summary denial. Grounds one through seven regarding jury instructions were not cognizable. Grounds eight and nine lacked merit: Sims was convicted of kidnapping (a first-degree felony), not a life felony, so the habitualization challenge failed; and his prior robbery conviction was validly used as a predicate despite the youthful offender sentence because he was adjudicated guilty and imprisoned, and the conviction fell within the five-year statutory period.
[1] Claims of trial court error in jury instructions are not cognizable in a rule 3.850 motion.
[2] A defendant's claim that a prior conviction cannot serve as a predicate for habitual offender sentencing because it was a youthful offender sentence is without merit if t…
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Join FLexlaw to unlock all legal intelligence“despite the sentencing judge's comments about use of a firearm, Sims was charged and convicted of kidnapping [without a firearm], a first-degree felony punishable by life, see § 787.01(2), Fla. Stat. (1995), not a life felony”
Establishes why the habitualization claim for a life felony lacked merit—the conviction was for a first-degree felony, not a life felony under the statute
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Join FLexlaw to unlock all legal intelligenceSims was convicted of kidnapping (a first-degree felony punishable by life) and sentenced as a habitual violent felony offender based on a prior robbe…
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We affirm the summary denial of Sims’s untimely and successive rule 3.850 motion, raising nine grounds, the first seven of which, claiming alleged trial court error in the jury instructions, were not cognizable. Although the trial court’s order did not address the two claims of illegal sentence, both were without merit.
In ground eight, Sims challenged his habitualization for a life felony, committed at a time when section 775.084, Florida Statutes, did not provide for habitual sentences for life felonies. The claim lacked merit because, despite the sentencing judge’s comments about use of a firearm, Sims was charged and convicted of kidnapping [without a firearm], a first-degree felony punishable by life, see § 787.01(2), Fla. Stat. (1995), not a life felony.
In ground nine, Sims claimed his prior conviction for robbery could not be the predicate for his sentencing as a habitual violent felony offender because he was sentenced for it as a youthful offender. However, he was adjudicated guilty and sen*614tenced to prison for that offense. That claim was raised in his August 2005 rule 3.800(a) motion, and was denied, see, e.g., Whitfield v. Singletary, 730 So.2d 314 (Fla. 3d DCA 1999), and the denial was affirmed on appeal. Sims v. State, 957 So.2d 19 (Fla. 4th DCA 2007), rev. denied, 977 So.2d 577 (Fla.2008).
Ground nine included a claim that there was no proof of the date of Sims’s release from prison for the predicate offense to establish that the instant offenses were committed within the five-year period thereafter. However, that is a ground which had to be raised on direct appeal or, if he could show prejudice, in a timely rule 3.850 motion. See Ives v. State, 993 So.2d 117 (Fla. 4th DCA 2008); Ward v. State, 946 So.2d 33 (Fla. 2d DCA 2006). In any event, the record established that the conviction for the predicate offense itself fell within the five-year period, making proof of the release date unnecessary, see § 775.084(1)(b)2, Fla. Stat. (1995), and Sims himself personally testified to his release in March of 1995, less than a year before the instant offenses were committed.
Affirmed.
CIKLIN, LEVINE and KLINGENSMITH, JJ„ concur.
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Ives v. State, 993 So. 2d 117 (Fla. 4th DCA 2008)
- Ward v. State, 946 So. 2d 33 (Fla. 2d DCA 2006)
- Whitfield v. Singletary, 730 So. 2d 314 (Fla. 3d DCA 1999)
- Alon D. Sims v. State, 957 So. 2d 19 (Fla. 4th DCA 2007)