JASPER R. KIRTSEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court's summary denial of the motion was improper because the appellant stated a facially sufficient claim that the sentence was illegal due to lack of justification for retained jurisdiction.
The appellant was adjudicated guilty of armed robbery and sentenced to 90 years with the court retaining jurisdiction over 30 years. The appellant all…
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PER CURIAM.
The appellant challenges the trial court’s summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a) alleging that the trial court illegally retained jurisdiction over one-third of his sentence. Because the appellant has stated a facially sufficient claim that his sentence is illegal that is not refuted by the record, we reverse.
On May 2, 1982, the appellant was adjudicated guilty of one count of armed robbery and sentenced to 90 years in prison with the court retaining jurisdiction over one-third (30 years) of that sentence. The appellant alleged that his sentence is illegal because the trial court did not justify the retention of jurisdiction over one-third of his sentence. In order to retain jurisdiction over the appellant’s sentence, the trial court must provide justification “with individual particularity.” See § 947.16(3)(a), Fla. Stat. (1981); Hampton v. State, 764 So. 2d 829 (Fla. 1st DCA 2000). The record contains no such justification.
Furthermore, contrary to the trial court’s ruling, this issue is cognizable in a rule 3.800 motion. See Hampton, 764 So. 2d at 830; Macias v. State, 614 So. 2d 1216 (Fla. 3d DCA 1993).
We accordingly reverse the summary denial of this claim and remand for the trial court to address this claim on the merits.
REVERSED AND REMANDED.
VAN NORTWICK, PADOVANO, and HAWKES, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (12 total)
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Wright v. State, 911 So. 2d 81 (Fla. 2005)…ANSTEAD, J. We have for review the decision in Wright v. State, 864 So. 2d 1153 (Fla. 2d DCA 2003), which certified conflict with the decisions in Kirtsey v. State, 855 So. 2d 177 (Fla. 1st DCA 2003); Hernandez v. State, 825 So. 2d 513 (Fla. 4th DCA 2002); Bingham v. State, 813 So. 2d 1021 (Fla. 1st DCA 2002); Thames v. State, 769 So. 2d 448 (Fla. 1st DCA 2000); Hampton v. [*82] State, 764 So. 2d 829 (Fla. 1st DCA 2000); and…
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Wright v. State, 864 So. 2d 1153 (Fla. 2d DCA 2003)…cognizable in a rule 3.800(a) motion to correct illegal sentence. Therefore, we affirm the trial court’s order of denial, recede from our opinion in King, 835 So. 2d 1224, and certify conflict with the First District’s opinions in Kirtsey v. State, 855 So. 2d 177 (Fla. 1st DCA 2003), Bingham v. State, 813 So. 2d 1021 (Fla. 1st DCA 2002), Thames v. State, 769 So. 2d 448 (Fla. 1st DCA 2000), and Hampton v. State, 764 So. 2d 829 (Fla. 1st DCA 2000); the Third District’s opinion in Macias v. State, 614 So. 2d 12…
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Baxter v. State, 892 So. 2d 1087 (Fla. 2d DCA 2004)…PER CURIAM. Affirmed. See Wright v. State, 864 So. 2d 1153 (Fla. 2d DCA 2003) (en banc). As this court did in Wright, we certify direct conflict with Kirtsey v. State, 855 So. 2d 177 (Fla. 1st DCA 2003); Hernandez v. State, 825 So. 2d 513 (Fla. 4th DCA 2002); Bingham v. State, 813 So. 2d 1021 (Fla. 1st DCA 2002); Thames v. State, 769 So. 2d 448 (Fla. 1st DCA 2000); Hampton v. State, 764 So. 2d 829 (Fla. 1st DCA 2000); and Macias…
Previewing 3 of 12 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Hampton v. State, 764 So. 2d 829 (Fla. 1st DCA 2000)
- MacIas v. State, 614 So. 2d 1216 (Fla. 3d DCA 1993)