State v. Moten, 96-1206
| Citation | 698 So.2d 1345 |
| Decision Date | 12 September 1997 |
| Docket Number | No. 96-1206,96-1206 |
| Parties | 22 Fla. L. Weekly D2163 STATE of Florida, Appellant, v. Joseph L. MOTEN, Appellee. |
| Court | Court of Appeal of Florida (US) |
Robert A. Butterworth, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for appellant.
James Dickson Crock of James Dickson Crock, P.A., Daytona Beach, for appellee.
The State of Florida appeals an order granting Joseph Moten's motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a), and setting aside Moten's conviction and sentence. We reverse.
Joseph L. Moten was charged with selling a controlled substance within 200 feet of a public park, a first degree felony in violation of section 893.13(1)(i)(1), Florida Statutes (1991). On 21 August 1991, Moten entered a negotiated plea to seven years incarceration in return for the state's agreement not to seek habitualization. Moten was sentenced accordingly on 13 September 1991. The court entered a judgment of conviction on the charge of selling a controlled substance within 200 feet of a public park. Moten did not appeal, but later filed numerous motions for post-conviction relief seeking clarification of his sentence. His only argument was that the Department of Corrections was treating his seven year sentence as a minimum mandatory sentence. In his current motion, filed on 16 February 1996, pursuant to rule 3.800, Florida Rules of Criminal Procedure, Moten alleged that he had pleaded guilty to sale of a controlled substance within 200 feet of a public housing facility rather than to sale of a controlled substance within 200 feet of a public park. Indeed, at the plea hearing the prosecutor at one point misstated the charge to the trial court. Moten agreed to plead "in docket number 91-3608 to sale of cocaine within 200 feet of a public housing project...." No objection was made to the misstatement at the time.
After hearing legal argument on Moten's current motion, the court entered an "amended 'Corrected' " judgment which adjudicated Moten guilty of sale of a controlled substance "in front of" a public housing facility. Then, based on Brown v. State, 629 So.2d 841 (Fla.1994), which held that the term "public housing facility" was vague, and Paige v. State, 641 So.2d 179 (Fla. 5th DCA 1994), which held that a person improperly convicted of sale of a controlled substance within 200 feet of a public housing facility should be convicted on remand of the lesser included offense of sale of a controlled substance, the court entered in effect a second amended judgment reflecting a conviction for sale of a controlled substance. In addition, the court resentenced Moten to four and one-half years to reflect the lesser conviction.
We agree with the state that the court improperly granted relief in this case. First, a 3.800 motion cannot be used to obtain relief from a judgment. See Sanders v. State, 621 So.2d 723 (Fla. 5th DCA 1993), rev. denied, 629 So.2d 135 (Fla.1993); State v. Spella, 567 So.2d 1051 (Fla. 5th DCA 1990). As the procedure used below makes apparent,...
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Smith v. State
...confinement is an attack on the underlying judgment, not on the sentence, so Rule 3.800(a) relief is not available); State v. Moten, 698 So.2d 1345 (Fla. 5th DCA 1997),rev. denied, 799 So.2d 218 (Fla.2001) (defendant's claim that he sold a controlled substance within 200 feet of public hous......
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Watkins v. State, 3D19-1729
...Wright v. State, 711 So. 2d 66, 67 (Fla. 3d DCA 1998); Hinson v. State, 709 So. 2d 629, 630 (Fla. 1st DCA 1998); State v. Moten, 698 So. 2d 1345, 1346 (Fla. 5th DCA 1997); Skidmore v. State, 688 So. 2d 1014, 1015 (Fla. 3d DCA ...
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Chesson v. State, 98-2062.
...Wright v. State, 711 So.2d 66, 67 (Fla. 3d DCA 1998); Hinson v. State, 709 So.2d 629, 630 (Fla. 1st DCA 1998); State v. Moten, 698 So.2d 1345, 1346 (Fla. 5th DCA 1997); Skidmore v. State, 688 So.2d 1014, 1015 (Fla. 3d DCA 1997). The sentence imposed upon the appellant is less than the statu......
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Anderson v. State, 4D00-0544.
...of a crime because of the possession of a weapon. Chanquet v. State, 646 So.2d 834 (Fla. 3d DCA 1994). See also State v. Moten, 698 So.2d 1345 (Fla. 5th DCA 1997)(a sentence which may have been improperly enhanced because the sale of the controlled substance was within 200 feet of a public ......