Austin v. State

District Court of Appeal of Florida

Austin v. State

874 So. 2d 47, 2004 Fla. App. LEXIS 6593, 2004 WL 1057850

CourtDistrict Court of Appeal of Florida

DecidedMay 12, 2004

DocketNo. 4D04-1193

StatusPublished

Cited by2 cases

This text of 874 So. 2d 47 (Austin 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.

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Austin v. State, 874 So. 2d 47, 2004 Fla. App. LEXIS 6593, 2004 WL 1057850 (Fla. Ct. App. 2004).

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Opinion

PER CURIAM.

The order denying Defendant’s rule 3.800(a) motion to correct illegal sentence is affirmed, but for reasons other than those expressed in the order on appeal.

The trial court found that the instant motion was successive to Defendant’s prior rule 3.800(a) motions; however, nothing in the summary record established that was so. Nevertheless, the denial is affirmed because the motion essentially challenged the validity of factors the trial court used to depart upward on resentencing, and its alleged refusal to consider factors in mitigation. If preserved, these challenges could have been raised in a direct appeal from the resentencing, but they are not claims of illegal sentence cognizable in a rule 3.800(a) motion. See Carter v. State, 786 So.2d 1173 (Fla.2001); Blakley v. State, 746 So.2d 1182, 1187 (Fla. 4th DCA 1999).

STEVENSON, HAZOURI and MAY, JJ., concur.

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PER CURIAM.

The order denying Defendant’s rule 3.800(a) motion to correct illegal sentence is affirmed, but for reasons other than those expressed in the order on appeal.

The trial court found that the instant motion was successive to Defendant’s prior rule 3.800(a) motions; however, nothing in the summary record established that was so. Nevertheless, the denial is affirmed because the motion essentially challenged the validity of factors the trial court used to depart upward on resentencing, and its alleged refusal to consider factors in mitigation. If preserved, these challenges could have been raised in a direct appeal from the resentencing, but they are not claims of illegal sentence cognizable in a rule 3.800(a) motion. See Carter v. State, 786 So.2d 1173 (Fla.2001); Blakley v. State, 746 So.2d 1182, 1187 (Fla. 4th DCA 1999).

STEVENSON, HAZOURI and MAY, JJ., concur.

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874 So. 2d 47, 2004 Fla. App. LEXIS 6593, 2004 WL 1057850, Counsel Stack Legal Research, https://law.counselstack.com/opinion/austin-v-state-fladistctapp-2004.

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