BRIAN THOMAS RIVIERE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Court reversed summary denial of motion to correct illegal sentence and remanded for reconsideration under Rule 3.850 because a statute of limitations claim, though properly raised under Rule 3.850 rather than Rule 3.800(a), was properly sworn and should have been treated as a Rule 3.850 motion.
A postconviction motion raising a statute of limitations claim must be treated as a Rule 3.850 motion if it is properly sworn and meets Rule 3.850 requirements, rather than being summarily denied under Rule 3.800(a).
[1] A postconviction motion properly sworn and meeting the requirements of Rule 3.850 should be treated as a Rule 3.850 motion rather than summarily denied under Rule 3.800(a…
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Join FLexlaw to unlock all legal intelligence“the postconviction court should not have denied it but rather should have treated it as a motion filed pursuant to that rule”
Court explaining that properly sworn motions meeting Rule 3.850 requirements should be treated as Rule 3.850 motions rather than summarily denied
Riviere filed a motion to correct illegal sentence under Rule 3.800(a) claiming the statute of limitations had expired before the State filed charges …
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KELLY, Judge.
Brian Thomas Riviere appeals the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse the postconviction court’s order and remand for reconsideration of the claim as if it were filed under rule 3.850.
Riviere’s motion raised the single claim that the statute of limitations expired before the State filed charges against him. The postconviction court correctly found that Riviere’s allegation should have been raised in a rule 3.850 motion. See Fla. R.Crim. P. 3.850(a)(1); Morgan v. State, 888 So. 2d 128 (Fla. 3d DCA 2004) (holding that the defendant’s claim that the statute of limitations had expired on several counts before the State filed its information was an attack on both his conviction and sentence and should be raised pursuant to rule 3.850). Nevertheless, because Riviere’s motion was properly sworn and otherwise met the requirements of rule 3.850, the postconviction court should not have denied it but rather should have treated it as a motion filed pursuant to that rule. See Snell v. State, 890 So. 2d 1292 (Fla. 2d DCA 2005); Rinderer v. State, 857 So. 2d 955 (Fla. 4th DCA 2003). Accordingly, we reverse the postconviction court’s order and remand for reconsideration pursuant to rule 3.850. If the court again denies the motion, it shall attach portions of the record that conclusively refute Riviere’s claim.
Reversed and remanded.
WHATLEY and VILLANTI, JJ„ Concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By
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Hettick v. State, 977 So. 2d 797 (Fla. 2d DCA 2008)…y avenue available to the movant is to file a claim pursuant to rule 3.850). Because the motion was properly sworn and was filed within the time limitations of that rule, the postconviction court should have treated it as such. See Riviere v. State, 965 So. 2d 845 (Fla. 2d DCA 2007). Second, the postconviction court’s reasons for rejecting Mr. Hettick’s claim were flawed. The postconviction court essentially concluded that the silence of the plea agreement as to the length of postin-carcerative supervision m…
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Pifer v. State, 8 So. 3d 1154 (Fla. 2d DCA 2009)…s to file a claim pursuant to rule 3.850)). Because Pifer’s motion was properly sworn and filed within the time limitations of rule 3.850, the postconviction court should have treated it as a motion filed pursuant to that rule. See Riviere v. State, 965 So. 2d 845 (Fla. 2d DCA 2007). Accordingly, we reverse the postconviction court’s order and remand for reconsideration pursuant to rule 3.850. If the court denies the motion, it must attach portions of the record that conclusively refute Pi-fer’s claim. Reve…
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Deatherage v. State, 15 So. 3d 775 (Fla. 2d DCA 2009)…izable under rule 3.800(a) but are cognizable under rule 3.850 should not be dismissed but rather should be treated as a motion filed pursuant to rule 3.850 when the motion meets timeliness and formal requirements of that rule. See Riviere v. State, 965 So. 2d 845 (Fla. 2d DCA 2007). In this case, however, the erroneous legal basis of Deatherage’s claim demonstrates that he is not entitled to relief. Deatherage argues that his felony convictions and state prison sentences should be converted to misdemeanors…
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Rinderer v. State, 857 So. 2d 955 (Fla. 4th DCA 2003)
- D.A. v. Fla. Dep't of Child. & Families, 888 So. 2d 128 (Fla. 3d DCA 2004)
- Cebert H. Snell v. State, 890 So. 2d 1292 (Fla. 2d DCA 2005)
- Keyambay LEE v. State, 890 So. 2d 1292 (Fla. 2d DCA 2005)
- Morgan v. State, 888 So. 2d 128 (Fla. 3d DCA 2004)