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Morgan v. State

District Court of Appeal of Florida, Third District
Nov 24, 2004
888 So. 2d 128 (Fla. Dist. Ct. App. 2004)

Summary

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

Summary of this case from Riviere v. State

Opinion

No. 3D04-2049.

November 24, 2004.

Appeal from the Circuit Court, Miami-Dade County, Mary Barzee, J.

Lawrence Morgan, in proper person.

Charles J. Crist, Jr., Attorney General, and Richard L. Polin, Assistant Attorney General, for appellee.

Before COPE, GERSTEN and WELLS, JJ.


Lawrence Morgan appeals an order denying his motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a). We affirm.

Defendant-appellant Morgan entered into a plea bargain on six counts of an information. Thereafter he filed a motion to correct illegal sentence, arguing that the statute of limitations had expired on counts three, five, and six prior to the time that the information was filed. He requested that the sentences be vacated on those counts, and the charges dismissed. He did not, however, request withdrawal of the plea. The trial court denied the motion and the defendant has appealed.

First, a motion to correct illegal sentence is an appropriate procedure for challenging a sentence, but not a conviction. See Wiley v. State, 604 So.2d 6, 7 (Fla. 1st DCA 1992); State v. Spella, 567 So.2d 1051, 1052 (Fla. 5th DCA 1990). Since the defendant is attempting to vacate his convictions as well as sentences, the appropriate procedure is a motion under Florida Rule of Criminal Procedure 3.850.

Second, we agree with Judge Barzee that the statute of limitations claim that the defendant attempts to raise involves a factual issue which cannot be determined from the face of the record and thus cannot be brought under Rule 3.800(a). That is so because the three-year statute of limitations cited by the defendant is subject to being extended for an additional three years "when the defendant is continuously absent from the state or has no reasonably ascertainable place of abode or work within the state." § 775.15(6), Fla. Stat. (1997). Since the information was filed within the period of the three-year extension (if applicable), it would require a factual inquiry to determine whether there was a time bar or not. Thus, under the circumstances present here, the motion would be cognizable only under Rule 3.850, as it requires a factual determination.

Affirmed.


Summaries of

Morgan v. State

District Court of Appeal of Florida, Third District
Nov 24, 2004
888 So. 2d 128 (Fla. Dist. Ct. App. 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

Summary of this case from Riviere v. State

holding that an evidentiary hearing would be required to determine whether the statute of limitations would have been extended for an additional three years

Summary of this case from McGregor v. State

acknowledging "a motion to correct illegal sentence is an appropriate procedure for challenging a sentence, but not a conviction"

Summary of this case from Williams v. State

acknowledging "a motion to correct illegal sentence is an appropriate procedure for challenging a sentence, but not a conviction"

Summary of this case from Robinson v. State

acknowledging "a motion to correct illegal sentence is an appropriate procedure for challenging a sentence, but not a conviction"

Summary of this case from Calafell v. State

acknowledging "a motion to correct illegal sentence is an appropriate procedure for challenging a sentence, but not a conviction"

Summary of this case from Ramirez v. State
Case details for

Morgan v. State

Case Details

Full title:Lawrence MORGAN, Appellant, v. The STATE of Florida, Appellee

Court:District Court of Appeal of Florida, Third District

Date published: Nov 24, 2004

Citations

888 So. 2d 128 (Fla. Dist. Ct. App. 2004)

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