GARRET EDWIN BROWN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Appellant Brown challenged his habitual offender sentence, raising three issues: (1) whether an out-of-state conviction could be used under the 1989 amendments to section 775.084; (2) whether consecutive habitual offender sentences were properly imposed for offenses arising from the same criminal episode; and (3) whether nonsequential convictions could be used for habitual offender sentencing. The court affirmed in part and reversed in part, remanding on the second issue for reconsideration as a 3.850 motion.
The court held that although the trial court erred in determining appellant was outside the 'window' period for the unconstitutional 1989 amendments, the error was harmless because appellant had two prior Florida felonies qualifying him for habitual offender status. Consecutive habitual offender sentences cannot be imposed for offenses arising from the same criminal episode, but this issue must be raised in a 3.850 motion. In 1991, nonsequential convictions could be used for habitual offender sentencing.
[1] A trial court may treat a motion for post-conviction relief as if filed under the proper rule if it is in the interest of justice.
[2] The question of whether offenses arose out of the same criminal episode for purposes of habitual offender sentencing must be raised in a motion filed under rule 3.850.
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Join FLexlaw to unlock all legal intelligence“consecutive habitual offender sentences cannot be imposed when the offenses arose out of the same criminal episode”
Establishes the core principle that consecutive sentences are prohibited when crimes are part of the same criminal episode.
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Join FLexlaw to unlock all legal intelligenceAppellant's offenses occurred in February 1991. He was sentenced as a habitual offender using an out-of-state conviction and prior Florida felonies. T…
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PER CURIAM.
Appellant challenges the denial of his 3.800 motion for correction of illegal sentence. As to the first issue raised, the trial court incorrectly ruled that appellant, whose offenses occurred in February, 1991, was not affected by the “window” period during which the 1989 amendments to section 775.084 were unconstitutional, and that his out-of-state conviction could be used as a basis for habitual offender sentencing, see State v. Johnson, 616 So. 2d 1 (Fla.1993), and Moffett v. State, 638 So. 2d 125 (Fla. 1st DCA 1994). However, the error does not entitle appellant to relief since he also had two prior Florida felonies to qualify him for habitual offender status under the pre-amended version of the statute.
As to the second issue, appellant correctly asserts that consecutive habitual offender sentences cannot be imposed when the offenses arose out of the same criminal episode, see Hale v. State, 630 So. 2d 521 (Fla.1993), cert, denied — U.S. —, 115 S.Ct. 278,130 L.Ed.2d 195 (1994). The question whether the offenses arose out of the same criminal episode must be raised in a 3.850 motion, see State v. Callaway, 658 So. 2d 983 (Fla.1995). Such a motion must be filed within the two year “window” following the supreme court’s decision in Hale. Id. Although styled a motion for post-conviction relief under rule 3.800, appellant’s motion contained sworn factual allegations. “The courts have the authority to treat prisoner petitions as if the proper remedy were sought if it would be in the interest of justice to do so.” Hall v. State, 643 So. 2d 635 (Fla. 1st DCA 1994). We believe it would be in the interest of justice to do so in this case. Therefore, on this issue, we remand with directions to treat appellant’s motion as if filed pursuant to rule 3.850.
As to the third issue, in 1991, when the instant offenses were committed, nonse-quential convictions could be used as a basis for habitual offender sentencing, see State v. Barnes, 595 So. 2d 22 (Fla.1992), Waters v. State, 657 So. 2d 39 (Fla. 1st DCA 1995), Ford v. State, 652 So. 2d 1236 (Fla. 1st DCA 1995).
Affirmed in part, reversed in part and remanded with directions.
BOOTH, JOANOS and BENTON, JJ., concur.
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Raley v. State, 675 So. 2d 170 (Fla. 5th DCA 1996)…Rule 3.800 Correction, Reduction, and Modification of Sentences (a) Correction. A court may at any time correct an illegal sentence imposed by it or an incorrect calculation made by it in a sentencing guidelines scoresheet. . See Brown v. State, 664 So. 2d 311, 312 (Fla. 1st DCA 1995) (our courts have the authority to treat prisoner petitions as if the proper remedy was sought if it would be in the interest of justice to do so). . Justice Anstead, then a district court judge, dissented pointing out that…
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Houston v. State, 714 So. 2d 538 (Fla. 1st DCA 1998)…PER CURIAM. AFFIRMED. See Harris v. State, 680 So. 2d 469 (Fla. 1st DCA 1996); Brown v. State, 664 So. 2d 311 (Fla. 1st DCA 1995). ERVIN, ALLEN and MICKLE, JJ., concur.…
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Cooper v. State, 678 So. 2d 865 (Fla. 1st DCA 1996)…e motion contains sworn factual allegations and was timely filed as provided in Callaway. Accordingly, the cause is reversed and remanded to the trial court with instructions to treat the motion as if filed pursuant to rule 3.850. See Brown v. State 664 So. 2d 311 (Fla. 1st DCA 1995). On remand, the court must determine whether appellant’s consecutive habitual offender sentences arose from a single criminal episode and are thus barred under Hale. ERVIN, MINER and MICKLE, JJ., concur. . Appellant alleges tha…
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
- Hale v. State, 630 So. 2d 521 (Fla. 1993)
- State v. Johnson, 616 So. 2d 1 (Fla. 1993)
- State v. Callaway, 658 So. 2d 983 (Fla. 1995)
- State v. Barnes, 595 So. 2d 22 (Fla. 1992)
- Hall v. State, 643 So. 2d 635 (Fla. 1st DCA 1994)
- Ford v. State, 652 So. 2d 1236 (Fla. 1st DCA 1995)
- Waters v. State, 657 So. 2d 39 (Fla. 1st DCA 1995)
- Moffett v. State, 638 So. 2d 125 (Fla. 1st DCA 1994)