Sanders v. State, 80-519
| Decision Date | 30 July 1980 |
| Docket Number | No. 80-519,80-519 |
| Citation | 386 So.2d 256 |
| Parties | Michael Alan SANDERS, Appellant, v. STATE of Florida, Appellee. |
| Court | Florida District Court of Appeals |
Michael Alan Sanders, pro se.
Jim Smith, Atty. Gen., Tallahassee, and Gregory C. Smith, Asst. Atty. Gen., Daytona Beach, for appellee.
This appeal questions a summary denial of a motion for post-conviction relief under Rule 3.850, Florida Rules of Criminal Procedure.
The indictment under which appellant was charged with robbery alleged in pertinent part that Michael Alan Sanders:
" . . . did not on the 31st day of August, 1975, in Orange County, Florida, in violation of Florida Statute 813.011 unlawfully, by force, violence, assault and putting in fear, rob, steal, and take away from the person and custody of . . . "
another, certain described property. Appellant pleaded guilty to the charge and was sentenced to imprisonment for nineteen years, less time served.
In his motion for relief, appellant seeks discharge on the ground that the trial court lacked jurisdiction to sentence him because Section 813.011, Florida Statutes (1973) had been amended and transferred to Section 812.13, Florida Statutes (Supp.1974), which became effective July 1, 1975 and therefore did not exist on the date the crime was committed. Additionally, appellant asserts that the indictment did not contain language to determine if he was armed with a weapon or unarmed " . . . therefore being the difference between a felony of the first degree or second degree." 1
Appellant's contention that the court lacked jurisdiction because the incorrect statute was referred to in the indictment is without merit, because the necessary elements of the crime of robbery were alleged under either statute, so it cannot be said that the indictment wholly failed to allege a crime, and there is no showing that appellant was misled to his prejudice. Sinclair v. State, 46 So.2d 453 (Fla.1950); Selley v. State, --- So.2d ---- Case No. 78-115/T4-44, Fla. 5th DCA, May 28, 1980; King v. State, 336 So.2d 1200 (Fla. 2d DCA 1976), cert. dismissed, 434 U.S. 802, 98 S.Ct. 30, 54 L.Ed.2d 60 (1977).
By the language of appellant's pro se motion previously quoted here, it is obvious that he contends that the maximum sentence he could have received was fifteen years for a second-degree felony, and that his sentence of nineteen years exceeds the maximum authorized by law. This point has merit. The State contends that this cannot be raised by a motion for post-conviction relief and that it should have been raised on direct appeal, but Rule 3.850, Florida Rules of Criminal Procedure, clearly states that a motion for post-conviction relief may assert that the sentence imposed was in excess of the maximum authorized by law. A sentence not authorized by law is always subject to collateral attack. Skinner v. State, 366 So.2d 486 (Fla. 3d DCA 1979).
Since the indictment did not charge that appellant was armed with either a firearm, a deadly weapon or a weapon, he could only be found guilty of a second-degree felony under Section 812.13, Florida Statutes (Supp.1974) and he should have been sentenced accordingly.
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