Button v. State, 93-00612

• Decision Date: 02 March 1994
• Docket Number: No. 93-00612,93-00612
• Citation: 641 So.2d 106
• Parties: 19 Fla. L. Weekly D503 Marlin BUTTON, Appellant, v. STATE of Florida, Appellee.
• Court: Florida District Court of Appeals

Page 106

641 So.2d 106

19 Fla. L. Weekly D503

Marlin BUTTON, Appellant, v. STATE of Florida, Appellee.

No. 93-00612.

District Court of Appeal of Florida Second District.

March 2, 1994.

Rehearing Denied June 17, 1994.

James Marion Moorman, Public Defender and Karen K. Purdy, Asst. Public Defender, Bartow, for appellant.

Robert A. Butterworth, Atty. Gen., Tallahassee, and Helene S. Parnes, Asst. Atty. Gen., Tampa, for appellee.

RYDER, Acting Chief Judge.

In October 1990, Marlin Button entered pleas of no contest to three counts of attempted sexual battery on a child under twelve. Pursuant to the plea agreement, the court sentenced him to three thirty-year terms of imprisonment, to be served consecutively. On November 10, 1992, Button filed a motion for postconviction relief. The trial court denied his request to withdraw his plea, but granted Button a belated appeal of the judgment and sentences. On appeal, he asserts that one of the sentences was illegal because the count for which it was imposed charged a violation of a statute not in existence at the time of the offense. He also seeks belated review of the trial court's denial of his request to withdraw his plea.

This case began in April 1990 when Button was charged with seven counts of sexual battery on a child under twelve, in violation of section 794.011(2), Florida Statutes. The crimes charged in Counts I through VI occurred between 1979 and 1984; the crime charged in Count VII occurred in 1972. Pursuant to a plea agreement, Button entered no contest pleas to the lesser included offenses of attempted battery on a child under twelve in Counts I, V and VII. The state agreed to nolle prosse the remaining counts and a single count from another case. In addition, the state agreed not to file any other charges for sexual offenses occurring before February 27, 1990. The plea agreement called for a sentence of thirty years' imprisonment, which was an upward departure from the guidelines' recommendation of twelve to seventeen years. The trial court accepted the plea, adjudicated Button guilty of the three charges and sentenced him to serve thirty years in prison on each count, the sentences to run concurrently.

In November 1992, Button filed his motion for postconviction relief. At the outset, we note that he did not file a timely notice of appeal from the lower court's denial of his request to withdraw his plea. Button claims, and the state does not seriously dispute, that the order denying his 3.850 motion did not advise him that he had the right to appeal or the time limitations for asserting that right. The court's failure to inform Button of his appeal rights provides grounds for a belated appeal. See Scalf v. Singletary, 589 So.2d 986 (Fla. 2d DCA 1991); State ex rel. Shevin v. District Court of Appeal, Third District, 316 So.2d 50 (Fla.1975). A request for a belated appeal of an order denying a 3.850 motion, however, is properly raised by a petition for habeas corpus. Button has not filed such a petition, and seeks review by direct appeal. Although Button has requested an improper remedy, we may treat his cause as if he had sought the proper remedy. Fla.R.App.P. 9.040(c). See also art. V, Sec. 2(a), Fla. Const.; Skinner v. Skinner, 561 So.2d 260 (Fla.1990) In this limited circumstance, and for the sake of judicial economy, we will treat Button's appeal as a petition for writ of habeas corpus, grant a belated appeal, and address his argument on the merits.

We have reviewed the portions of the record attached to the trial court's denial of Button's request to withdraw his plea and request for an evidentiary hearing. The record conclusively rebuts Button's allegations that his plea was not voluntary and that his counsel was ineffective. He was not entitled to relief. See Kennedy v. State, 547 So.2d 912 (Fla.1989). Accordingly, we affirm.

As previously stated, the lower court did grant Button a belated appeal of his judgment and sentence. He challenges his sentence on Count VII, correctly asserting that the allegations in the count do not support the crime of capital sexual battery or attempted capital sexual battery as those terms were defined in 1972, the year in which he allegedly committed the crime. The count asserted that, in June or July of 1972, Button "commit[ted] a sexual battery upon ... a female child of 11 years by penetrating [her] vagina ... with his finger, in violation of Florida Statute 794.011(2)...." Section 794.011(2)...