ERNEST TODD KEENE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Ernest Keene appealed the denial of his rule 3.800(a) motion for postconviction relief, raising four claims: failure to grant a downward departure sentence, illegality of his felony DUI conviction based on a remote prior DUI, sentencing above the plea offer limit, and lack of jurisdiction to revoke probation on both counts. The court affirmed the denial of all claims.
The court affirmed the denial of all four claims. The downward departure claim was meritless. The illegality of the DUI conviction claim constitutes an attack on the sufficiency of evidence cognizable only on direct appeal, not under rule 3.800(a). The sentencing claim was meritless due to its conclusory nature and failure to establish illegality. The jurisdictional claim could not be adjudicated on the record presented but was affirmed without prejudice, allowing Keene to raise it in a timely rule 3.860 motion if he could argue in good faith.
[1] A claim attacking the sufficiency of the evidence supporting a conviction must be raised on direct appeal and is not cognizable in a rule 3.800(a) motion for postconvicti…
[2] A conclusory assertion of being sentenced above a plea offer, without claiming the sentence is illegal, is meritless.
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“This claim should have been raised on direct appeal and is not cognizable under rule 3.800(a).”
Establishes that sufficiency of evidence challenges must be brought on direct appeal, not in postconviction relief motions.
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Join FLexlaw to unlock all legal intelligenceKeene was convicted and sentenced on multiple counts, including felony DUI. He was placed on community control and probation for Count I and probation…
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Appellant seeks review of the order denying his rule 3.800(a) motion for postcon-viction relief. Appellant’s first claim, that the trial court erred by failing to. give him a downward departure sentence, is merit-less, His second claim, that his conviction for felony DUI was illegal because his prior DUI conviction was too far removed in time, constitutes an attack on the sufficiency of the evidence. This claim should have been raised on direct appeal and is not cognizable under rule 3.800(a). See Prince v. State, 903 So.2d 1068, 1069 (Fla. 2d DCA 2005). In his third claim, Appellant asserts in a conclusory fashion that he was sentenced above the limit contemplated by the plea offer; however, Appellant makes no claim that this increase rendered his sentence illegal. Given its conclusory nature, this claim is also meritless. See Santiago v. State, 22 So.3d 789, 790 (Fla. 5th DCA 2009). We affirm the denial of those three claims.
We also affirm as to Appellant’s fourth claim, in which he asserts that the postcon-*1284viction court lacked jurisdiction to revoke his original term of community control and probation imposed for Count I, because he had already completed the requisite terms under that count. Although Appellant was still serving a term of probation as punishment for his conviction under Count II, it appears that he may have completed his sentence as to Count I at the time the lower court ordered his community control and probation revoked as to both Counts I and II. This claim cannot be adjudicated based upon the records presented. However, we affirm without prejudice for Appellant to raise this jurisdictional claim in a timely motion pursuant to rule 3.860 if he can argue in good faith that the sentence imposed for violation of probation was more severe because the lower court’s order of revocation was as to both Counts I and II, rather than only revoking as to Count II.
AFFIRMED.
TORPY and LAMBERT, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Santiago v. State, 22 So. 3d 789 (Fla. 5th DCA 2009)
- Prince v. State, 903 So. 2d 1068 (Fla. 2d DCA 2005)