JAMES DAVID OGILVIE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant James Ogilvie appealed the denial of a Criminal Procedure Rule No. 1 petition challenging his conviction and sentence for attempted robbery. The court affirmed the denial of his claim that he lacked counsel but reversed his sentence as excessive, remanding for resentencing within the statutory maximum of five years.
The court affirmed the denial of Ogilvie's lack-of-counsel claim because he failed to timely appeal the prior denials of identical claims and the sentencing court is not required to entertain successive motions for similar relief. The court reversed the sentence as excessive, finding that the maximum sentence for attempted robbery is five years (not ten), and remanded for resentencing within proper limits.
“The sentencing court is not required "to entertain a second or successive motion for similar relief on behalf of the same prisoner."”
Establishes that successive petitions for identical relief on the same grounds need not be entertained by the sentencing court.
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Join FLexlaw to unlock all legal intelligenceOgilvie filed a Criminal Procedure Rule No. 1 petition challenging his conviction and sentence. This was his third successive petition alleging lack o…
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Appellant, petitioner below, takes timely appeal from the order denying his Criminal Procedure Rule No. 1, F.S.A. ch. 924 Appendix, petition.
Appellant alleges: (1) that he was arraigned and sentenced without counsel and that he did not intelligently waive counsel; and (2) that his sentence for Attempted Robbery is excessive.
This is petitioner’s third successive Criminal Procedure Rule No. 1 petition. In his previous petitions, he alleged that he was without counsel and that he did not intelligently waive counsel. These previous petitions were denied below and no timely appeal was taken therefrom.
*711The sentencing court is not required “to entertain a second or successive motion for similar relief on behalf of the same prisoner.” Criminal Procedure Rule No. 1. Since no timely appeal was taken from the denial of the first petition, we are without power to consider the merit of the allegation.
Petitioner’s second allegation, that his ten year sentence for attempted robbery is excessive, has merit. Petitioner’s brief contains no argument in reference to the second allegation, but an appellate court will always consider fundamental error apparent on the face of the record. Wyche v. State, Fla.App.1965, 178 So.2d 875. The record shows that after petitioner pleaded guilty to the information, the judge found him guilty of attempted robbery. The other order in the record sentenced the petitioner to ten years in the State Prison for attempted robbery.
The maximum sentence for robbery is life imprisonment. Section 813.011, Fla. Stats., F.S.A. As to the conviction for an attempt of a crime that carries a maximum life sentence, the maximum sentence which can be imposed for the attempt is five years. Section 776.04(2), Fla.Stats., F.S.A. Since maximum sentence for attempted robbery is five years, we must remand to the sentencing court for proper sentence. Cf. Ross v. State, Fla.App. 1958, 100 So.2d 87.
We. affirm the order as it denies relief on the ground of lack of counsel. However, in view of our finding that the sentence is excessive, we remand with directions that sentence be set aside, and the petitioner (defendant) be sentenced according to law; and that credit be given for the period of imprisonment already served. Ross v. State, supra.
Affirmed in part and reversed in part.
SHANNON and LILES, JJ., concur.
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The Bd. OF Pub. Instruction OF Sarasota Cnty. v. The Fid. & Cas. Co. OF NEW York, 184 So. 2d 491 (Fla. 2d DCA 1966)…d no notice provisions, use plaintiff was not precluded from bringing his action. Although the parties did not argue this point, an appellate court will always consider fundamental error that is apparent on the face of the record. Ogilvie v. State, 181 So. 2d 710 (D.C.A.Fla.1966); Wyche v. State, 178 So. 2d 87S (D.C.A.Fla.1965); Rule 3.7, subdiv. i, Fla.Appellate Rules, 31 F.S.A. Accordingly, the judgment of the trial court is reversed and the cause remanded for further proceedings not inconsistent with thi…
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Rankin v. State, 197 So. 2d 545 (Fla. 2d DCA 1967)…Fla.App.1965, 176 So. 2d 603; Cole v. State. Fla.App.1966, 181 So. 2d 698; Brown v. State, Fla.App.1964, 164 So. 2d 34; Smith v. State, Fla.App.1965, 180 So. 2d 675; Johnson v. State, Fla.App.1966, 181 So. 2d 667, and Ogilvie v. State, Fla.App.1966, 181 So. 2d 710. We find that oral argument would serve no useful purpose and it is therefore dispensed with pursuant to Florida Appellate Rule 3.10, subd. e, 31 F.S.A. ALLEN, C. J., and LILES and PIERCE, JJ-, concur.…
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Freccacreto v. State, 291 So. 2d 630 (Fla. 4th DCA 1974)…Nonetheless, the adjudication of guilt and sentence on a nolle prossed charge is error of such a fundamental nature apparent from the face of the record which would justify appellate consideration and rectification. Ogilvie v. State, Fla.App. 1966, 181 So. 2d 710.…
Previewing 3 of 5 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Edmond Wyche v. State, 178 So. 2d 875 (Fla. 2d DCA 1965)
- Ross v. State, 100 So. 2d 87 (Fla. 1st DCA 1958)