JAY ARTHUR KELLY
v.
STATE OF FLORIDA
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A claim that a defendant does not qualify as a sexual offender under section 943.0435 based on the timing of release from a prior qualifying offense is not cognizable in a Rule 3.850 postconviction motion when that claim could have been raised on direct appeal.
[1] A claim that a defendant does not qualify as a sexual offender under section 943.0435(1)(h)1., Florida Statutes, is not cognizable in a motion for postconviction relief f…
[2] A motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 does not authorize relief based upon grounds that could have or should have been raised…
Previewing 2 of 3 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 rule does not authorize relief based upon grounds that could have or should have been raised at trial and, if properly preserved, on direct appeal of the judgment and sentence.”
Florida Rule of Criminal Procedure 3.850(c), cited by the court to explain why Kelly's motion was not cognizable.
Kelly pled guilty to failing to comply with sexual offender registration requirements under section 943.0435, Florida Statutes, and was sentenced to t…
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FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA _____________________________
No. 1D18-1438 _____________________________
JAY ARTHUR KELLY,
Appellant,
v. STATE OF FLORIDA,
Appellee.
_____________________________
On appeal from the Circuit Court for Clay County. Michael S. Sharrit, Judge.
October 21, 2019 RAY, C.J.
Jay Arthur Kelly appeals from an order summarily denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm.
Kelly pled guilty to one count of failing to comply with sexual offender registration requirements, a violation of section 943.0435, Florida Statutes (2016), in exchange for a sentence of thirty-six months in prison. This court affirmed his conviction and sentence without written opinion. Kelly v. State, 231 So. 3d 410 (Fla. 1st DCA 2017) (Table). In his sole ground for postconviction relief, Kelly alleges that his conviction should be vacated because he does not qualify as a sexual offender. Specifically, he argues that he should have been released for his qualifying offense prior to
2
October 1, 1997, the effective date of the relevant statute. See 943.0435(1)(h)1., Fla. Stat. (providing that a sexual offender is someone with a qualifying prior conviction who has “been released on or after October 1, 1997, from the sanction imposed for [the qualifying offense]”). The postconviction court denied the motion, correctly noting that Kelly had unsuccessfully raised this issue twice before—first in a motion to dismiss below and later on direct appeal.
Kelly’s motion was properly denied as his claim is not cognizable in a rule 3.850 motion. See Fla. R. Crim. P. 3.850(c) (“This rule does not authorize relief based upon grounds that could have or should have been raised at trial and, if properly preserved, on direct appeal of the judgment and sentence.”); Johnson v. State, 985 So. 2d 1215, 1215 (Fla. 1st DCA 2008) (“[P]rosecutorial misconduct, insufficiency of the evidence ..., and trial court error, are not cognizable in a collateral postconviction motion.”).
AFFIRMED.
B.L. THOMAS and WINOKUR, JJ., concur.
_____________________________ Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.
_____________________________
Jay Arthur Kelly, pro se, Appellant. Ashley Moody, Attorney General, Tallahassee, for Appellee.
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- Aahtrell Johnson v. State, 985 So. 2d 1215 (Fla. 1st DCA 2008)
- Kelly v. State, 231 So. 3d 410 (Fla. 1st DCA 2017)