THOMAS D. WHITTAKER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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In this post-conviction proceeding, Whittaker challenged his habitual offender sentencing following convictions for attempted murder, robbery, and burglary. The appellate court affirmed the denial of his motion for post-conviction relief, finding that he failed to allege he had actually been pardoned or that his convictions were set aside.
No. The court affirmed the denial of post-conviction relief because Whittaker failed to allege that he had been pardoned or that any conviction had actually been set aside, and absent such an allegation that he did not qualify as an habitual offender, the motion, files, and records conclusively showed he was entitled to no relief.
Whittaker was convicted of attempted murder, robbery, and burglary of a dwelling. He was adjudged an habitual offender under Florida Statutes § 775.08…
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BENTON, Judge.
We affirm an order denying defendant’s motion for post conviction relief on the grounds lucidly set out in the order, and in light of the decision in State v. Rucker, 613 So. 2d 460 (Fla.1993). After the movant, appellant here, was convicted of attempted murder, robbery and burglary of a dwelling, he was adjudged an habitual offender under section 775.084(4)(a), Florida Statutes (1989), and sentenced accordingly. On direct appeal, judgments and sentences were affirmed. Whittaker v. State, 594 So. 2d 740 (Fla. 1st DCA 1992).
In this collateral proceeding, appellant alleged that, while “defense counsel conceded [at sentencing] ... sufficient prior felonies ... the trial court made no finding that the predicate convictions had not been pardoned or set aside,” but did not allege that he had been pardoned or that any pertinent conviction had in fact been set aside. In the absence of an allegation that he did not qualify as an habitual offender, “the motion, files and records in the case conclusively show that the prisoner is entitled to no relief.” Fla.R.Crim.P. 3.850(d). We affirm without briefs or oral argument. Fla.R.App.P. 9.140(g).
AFFIRMED.
ZEHMER, C.J., and KAHN, J., concur.