Kendall v. State
| Decision Date | 16 June 1993 |
| Docket Number | No. 93-0681,93-0681 |
| Citation | 619 So.2d 515 |
| Parties | 18 Fla. L. Week. D1435 William KENDALL, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
William Kendall, Punta Gorda, pro se appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Edward L. Giles, Asst. Atty. Gen., West Palm Beach, for appellee.
This is an appeal from a trial court order which denied rehearing from an earlier order in which the court denied appellant's motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Appellant raised specific challenges to his conviction and sentence for attempted sexual battery in grounds 4(a) through (f) of his motion, and we ordered a response and reply, limited to ground 4(f). We affirm as to the challenges raised in 4(a) through (e). As to ground 4(f), we reverse and remand with direction to proceed in accordance herewith.
In (f), appellant alleges denial of due process and presumably illegal sentencing for failure of the court to make specific findings of fact when enhancing his sentence under the Habitual Offender Act. This type of challenge has been acknowledged as appropriate for a collateral attack by rule 3.850 motion. See, e.g., Basilisco v. State, 593 So.2d 588 (Fla. 1st DCA 1992); Debose v. State, 580 So.2d 638 (Fla. 5th DCA 1991).
Appellant argues that the trial court simply made a general statement that because of his record, the seriousness of the offense and to protect the public, his sentence would be enhanced. Taking judicial notice of the appellant's direct appeal file in this court, we see that his sentence refers to a separate order or findings in the court record supporting his classification as an habitual offender. However, the full record of the proceedings is no longer in this court, as the appellate file is closed. Thus, we cannot review the record to determine whether appellant's claim contains merit.
The trial court order denied relief in part because the notary section of the motion did not comport with the technical requirements of section 117.05(16), Florida Statutes (Supp.1992), which require the notary to state whether the affiant was personally known to him or her, or whether the affiant produced identification. However, in Crotty v. State, 568 So.2d 1328 (Fla. 4th DCA 1990), this court rejected a similar challenge to a rule 3.850 motion's notary section. We find no case law support for the trial court's summary rejection of the motion for this reason.
The trial court also denied relief on the grounds that the claims in the motion should have been raised on direct appeal. However, that reasoning does not apply to challenges to the legality of sentencing, which is the challenge in 4(f...
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Sheffield v. State
...excerpts that specifically address the claims raised in the motion. See Anderson v. State, 627 So.2d 1170 (Fla.1993); Kendall v. State, 619 So.2d 515 (Fla. 4th DCA 1993). Our supreme court has consistently described the lower court's duties when denying such a motion as "a trial court must ......
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Thomas v. State, 95-3008
...considered the merits of the motion despite appellant's noncompliance with these subsections of rule 3.850. Compare Kendall v. State, 619 So.2d 515 (Fla. 4th DCA 1993) (failure of notary section of motion to comport with technical requirements of notary statute not basis for summary denial ......
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Sheffield v. State, Case No. 4D04-4795 (FL 3/30/2005), Case No. 4D04-4795.
...excerpts that specifically address the claims raised in the motion. See Anderson v. State, 627 So.2d 1170 (Fla. 1993); Kendall v. State, 619 So.2d 515 (Fla. 4th DCA 1993). Our supreme court has consistently described the lower court's duties when denying such a motion as "a trial court must......
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Petrie v. State
...This court has held that the summary denial of a rule 3.850 motion, for this particular reason, is error. Kendall v. State, 619 So.2d 515 (Fla. 4th DCA 1993); Crotty v. State, 568 So.2d 1328 (Fla. 4th DCA In reviewing the claims contained in the motion we have concluded that the only one wh......