ANTHONY BANKS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Court reversed denial of post-conviction relief and remanded because appellant was not given written notice of intent to habitualize before entering his plea, violating Ashley v. State.
A habitual offender sentence imposed after probation revocation is illegal when the defendant did not receive written notice of intent to habitualize at the time of the original plea.
[1] A habitual offender sentence cannot be imposed after probation revocation if the defendant did not receive written notice of intent to habitualize before entering the ori…
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Join FLexlaw to unlock all legal intelligenceAppellant Banks received a habitual offender sentence after revocation of probation. He claims he did not receive written notice of intent to habitual…
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PER CURIAM.
We reverse the denial of appellant’s motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850, and the denial of rehearing from that order. Appellant first claims that his habitual offender sentence, imposed after revocation of probation, is illegal because it could not have been imposed originally. He claims he did not receive written notice of intent to habitualize when he entered his original plea. Ashley v. State, 614 So. 2d 486 (Fla.1993). We recently have held that the appropriate way to raise an Ashley violation is by seeking to withdraw the plea in the trial court. Williams v. State, 22 Fla. L. Weekly D209, — So. 2d — (Fla. 4th DCA Jan. 15, 1997). Appellant’s motion can be construed as containing all of the elements of a motion to withdraw his plea. We therefore remand to the trial court for an evidentiary hearing or attachments of portions of the record refuting his claim. See also State v. Jefferson, 665 So. 2d 1057 (Fla.1996).
As an alternative, appellant also alleges that his counsel at the revocation hearing was ineffective for failing to challenge his habitual offender sentence on grounds of Ashley. The state acknowledges the propriety of reversal and remand on this interrelated issue because the trial court’s order did not attach documents refuting this point.
Reversed and remanded for attachment of portions of the record refuting appellant’s claims, or an evidentiary hearing.
DELL, WARNER and KLEIN, JJ., concur.
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Citator
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Kenon v. State, 780 So. 2d 258 (Fla. 5th DCA 2001)…re harmless errors. See Isom v. State, 750 So. 2d 784 (Fla. 3d DCA 2000) (holding that scoresheet error, even if they affected the recommended range, were harmless since the defendant was given a life sentence as a habitual offender); Boyd v. State, 687 So. 2d 1389 (Fla. 4th DCA 1997) (concluding that scoresheet error was harmless since the trial court imposed the maximum sentence allowable for a habitual violent offender). With respect to the convictions for carrying a concealed firearm and possession of a f…
Authorities Cited
- Ashley v. State, 614 So. 2d 486 (Fla. 1993)
- State v. Phaneuf, 665 So. 2d 1057 (Fla. 1996)
- State v. Jefferson, 665 So. 2d 1057 (Fla. 1996)