State v. Bolyea, No. 70720

• Court: United States State Supreme Court of Florida
• Writing for the Court: BARKETT; McDONALD
• Citation: 520 So.2d 562,13 Fla. L. Weekly 117
• Parties: 13 Fla. L. Weekly 117 STATE of Florida, Petitioner, v. Wilbert E. BOLYEA, Respondent.
• Decision Date: 18 February 1988
• Docket Number: No. 70720

Page 562

520 So.2d 562 13 Fla. L. Weekly 117 STATE of Florida, Petitioner,
v.
Wilbert E. BOLYEA, Respondent. No. 70720. Supreme Court of Florida. Feb. 18, 1988. Fla. 1988.

Robert A. Butterworth, Atty. Gen., and Kim W. Munch, Asst. Atty. Gen., Tampa, for petitioner.

James Marion Moorman, Public Defender, and Paul C. Helm, Asst. Public Defender, Chief, Appellate Division, Tenth Judicial Circuit, Bartow, for respondent.

BARKETT, Justice.

We have for review Bolyea v. State, 508 So.2d 457 (Fla. 2d DCA 1987), based on certified direct conflict 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. Const.

The sole issue presented is whether court-ordered probation in and of itself constitutes "custody under sentence" for purposes of Rule 3.850. ¹ For the reasons expressed below, we hold that it does, and approve the decision below.

On June 29, 1983, a jury found respondent guilty of practicing dentistry without a license. On November 21, 1983, respondent was ordered to serve five years' probation with the condition that he serve 364 days in the county jail. On September 6, 1984, respondent filed a motion for postconviction relief alleging ineffective assistance of counsel, which the trial court summarily denied. On appeal, the Second District reversed and remanded with directions either to attach those portions of the record showing respondent was not entitled to relief or to hold an evidentiary hearing. Bolyea v. State, 473 So.2d 817 (Fla. 2d DCA 1985).

At the hearing on remand held November 4, 1985, the state moved to strike respondent's

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motion for postconviction relief on grounds that respondent no longer was "in custody" for purposes of Rule 3.850 because he no longer was in jail. The trial court granted the state's motion, and respondent timely appealed.

The Second District held that a probationer, whether or not incarcerated as a condition of probation, is in "custody" for purposes of Rule 3.850; and the district court again remanded for an appropriate hearing. 508 So.2d at 459.

We note initially that the state concedes that respondent is entitled to seek habeas relief under Ex parte Bosso, 41 So.2d 322 (Fla.1949). Because Rule 3.850 is a procedural vehicle for the collateral remedy otherwise available by writ of habeas corpus, we find that respondent plainly has standing to seek the relief requested. As we stated in Roy v. Wainwright, 151 So.2d 825, 828 (Fla.1963),

[t]he rule is intended to provide a complete and efficacious post-conviction remedy to correct convictions on any grounds which subject them to collateral attack.

(Emphasis added). Indeed, the rule was designed to simplify the process of collateral review and prescribe both a fact-finding function in the lower courts and a uniform method of appellate review, State v. Wooden, 246 So.2d 755, 756 (Fla.1971), not to modify the remedy available at common law.

We find nothing in the relevant authorities to support the state's argument that probationers are barred from the relief requested. Rule 3.850 was taken nearly word-for-word from the federal habeas corpus statute, 28 U.S.C. § 2255 (1961), ² see Roy, 151 So.2d at 828, and we plainly have given the rule the same broad scope as its federal counterpart. Moreover, we explicitly have recognized federal precedent interpreting 28 U.S.C. § 2255 as persuasive authority in construing Rule 3.850. Id. Accord Archer v. State, 166 So.2d 163, 164 (Fla. 2d DCA 1964).

The United States Supreme Court prior to Roy clearly had ruled that the remedy afforded by 28...