PAUL R. PRIMAVERA, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Paul Primavera appealed the denial of his motion to correct an illegal sentence, arguing double jeopardy violations. The appellate court reversed, holding that while the double jeoparty claim was not cognizable under Rule 3.800(a), the motion was timely under Rule 3.850 and the trial court erred in refusing to consider it under that rule.
The appellate court held that while double jeopardy challenges are not cognizable under Rule 3.800(a), the trial court erred in refusing to consider the motion under Rule 3.850 because the motion was timely filed within the two-year deadline, and Primavera was entitled to an opportunity to amend the motion to state a facially sufficient claim.
[1] A motion to correct an illegal sentence under Rule 3.800(a) is limited to claims that the sentence itself is illegal, not challenges to the underlying convictions.
[2] A double jeopardy challenge to a sentence necessarily involves a challenge to the underlying conviction and is not cognizable under Rule 3.800(a).
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“double jeoparry challenges to sentences necessarily involve challenges to the underlying convictions and that rule 3.800(a) is limited to claims that the sentence is illegal”
Establishes that double jeopardy claims cannot be raised under Rule 3.800(a) motions
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Join FLexlaw to unlock all legal intelligencePrimavera was convicted of eight counts of promotion of a sexual performance by a child and received sentences on those counts. He filed a motion to c…
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Paul R. Primavera appeals the order denying his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse and remand for further proceedings.
In his motion, Primavera argued that his sentences for eight counts of promotion of a sexual performance by a child violated his double jeopardy rights. The postcon-viction court correctly found that Primav-eras claim was not cognizable in a rule 3.800(a) motion. See Coughlin v. State, 932 So.2d 1224, 1226 (Fla. 2d DCA 2006) (en banc) (holding that double jeopardy challenges to sentences necessarily involve challenges to the underlying convictions and that rule 3.800(a) is limited to claims that the sentence is illegal). But the court incorrectly found that it could not consider the motion as filed under Florida Rule of Criminal Procedure 3.850 because it was untimely and facially insufficient. ■ Rule 3.850(b) provides that motions under the rule must be filed within two years of the *92judgment and sentence becoming final. This court issued the mandate on November 19, 2013, and Primavera filed his motion on September 11, 2015. Thus, the motion was timely filed. Under rule 3.850, a movant is entitled to amend his motion to state a facially sufficient claim if he can do so in good faith. See Patterson v. State, 141 So.3d 707, 709 (Fla. 2d DCA 2014) (holding that because the postconviction court should have treated Patterson’s motion as if it had been filed under rule 3.850, he had to be given an opportunity to amend the motion pursuant to rule 3.850(f)(2) if he could do so in good faith).
Accordingly, we reverse the order denying Primavera’s rule 3.800(a) motion and remand for the postconviction court to treat it as timely filed under rule 3.850.
Reversed and remanded.
NORTHCUTT, SILBERMAN, and SLEET, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Coughlin v. State, 932 So. 2d 1224 (Fla. 2d DCA 2006)
- Patterson v. State, 141 So. 3d 707 (Fla. 2d DCA 2014)