Aburto v. State

District Court of Appeal of Florida

Aburto v. State

848 So. 2d 1197, 2003 Fla. App. LEXIS 9398, 2003 WL 21459648

CourtDistrict Court of Appeal of Florida

DecidedJune 25, 2003

DocketNo. 4D03-1413

StatusPublished

This text of 848 So. 2d 1197 (Aburto v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Aburto v. State, 848 So. 2d 1197, 2003 Fla. App. LEXIS 9398, 2003 WL 21459648 (Fla. Ct. App. 2003).

Pincite

Opinion

PER CURIAM.

David Aburto filed a Florida Rule of Criminal Procedure 3.800(a) Motion to Correct Illegal Sentence challenging the constitutionality of the Criminal Punishment Code (CPC). The trial court denied the motion after ordering a State Response. The court’s denial of the motion was proper as Aburto was sentenced as a Habitual Felony Offender, not under the CPC.

After the court’s order was rendered, Aburto filed a “Reply to the State’s Response.” In this Reply, Aburto raised a different ground for relief, claiming the three-year minimum mandatory sentence imposed by the court was illegal. The Reply appears to state a legally sufficient claim. See Wright v. State, 779 So.2d 399 (Fla. 2d DCA 2000); Grant v. State, 650 So.2d 705 (Fla. 3d DCA 1995); Alfrod v. State, 644 So.2d 549 (Fla. 3d DCA 1994). The trial court has not addressed this claim.

To prevent Aburto’s claim from inadvertently being barred as successive, we write to affirm the denial of the initial motion but remand the case to the trial court with directions to treat Aburto’s Reply as a separate motion to correct illegal sentence.

WARNER, TAYLOR and HAZOURI, JJ., concur.

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