Bellcase v. State
| Citation | 406 So.2d 116 |
| Decision Date | 25 November 1981 |
| Docket Number | No. 81-807,81-807 |
| Parties | Robert L. BELLCASE, Appellant, v. STATE of Florida, Appellee. |
| Court | Court of Appeal of Florida (US) |
Robert L. Bellcase, pro se.
No appearance for appellee.
Appellant contends that the trial court erred in denying his motion for post-conviction relief, because appellant was not "a prisoner in custody" as required by Florida Rules of Criminal Procedure 3.850. 1 The record before us makes it appear that after conviction, appellant was placed on probation for five years upon condition that he serve eleven months and thirty days in jail, and that he is no longer incarcerated.
The language of the rule is specific and clear. Only a "prisoner in custody under sentence" may apply for relief under this rule. Petitioner is not in "custody" nor has he been "sentenced," 2 thus he has no standing under this rule. Weir v. State, 319 So.2d 80 (Fla.2d DCA 1975).
The judgment is AFFIRMED.
1 Florida Rule of Criminal Procedure 3.850: A prisoner in custody under sentence of a court established by the laws of Florida ... may move the court which entered the judgment or imposed the sentence to vacate, set aside or correct the judgment or sentence.
2 Under Florida Rule of Criminal Procedure 3.790, imposition of sentence is not made upon a defendant who is to be placed on probation. Neither does incarceration as a condition of probation constitute a "sentence." Villery v. The Florida Parole and Probation Commission, 396 So.2d 1107 (Fla.1980).
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Rita v. State
...the meaning of that requirement in rule 3.850, and relies on Ferguson v. Stone, 415 So.2d 98 (Fla. 4th DCA 1982), and Bellcase v. State, 406 So.2d 116 (Fla. 5th DCA 1981), rev. den., 417 So.2d 328 (Fla.1982), as authority for Rita's lack of standing under the language used in rule 3.850. We......
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State v. Bolyea
...with Decker v. State, 476 So.2d 330 (Fla. 4th DCA 1985), Ferguson v. Stone, 415 So.2d 98 (Fla. 4th DCA 1982), and Bellcase v. State, 406 So.2d 116 (Fla. 5th DCA 1981), review denied, 417 So.2d 328 (Fla.1982). We have jurisdiction. Art. V, § 3(b)(4), Fla. The sole issue presented is whether ......
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Bolyea v. State
...of a rule 3.850 motion for postconviction relief, appellant was at all times "in custody." The state relies on Bellcase v. State, 406 So.2d 116 (Fla. 5th DCA 1981), pet. for rev. denied, 417 So.2d 328 (Fla.1982), in which the fifth district held that an appellant who was placed on probation......
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Ferguson v. Stone, 81-2198
...sentence," as Florida Rule of Criminal Procedure 3.850 requires, he is unable to seek post-conviction relief. See Bellcase v. State, 406 So.2d 116 (Fla. 5th DCA 1981) (probationer lacks standing under rule 3.850). Therefore, petitioner's remedy is to seek a writ of certiorari.2 The victim's......