Aysisayh v. State

District Court of Appeal of Florida

Aysisayh v. State

752 So. 2d 667, 2000 Fla. App. LEXIS 457, 2000 WL 61761

CourtDistrict Court of Appeal of Florida

DecidedJanuary 26, 2000

DocketNo. 2D99-3651

StatusPublished

Cited by1 cases

This text of 752 So. 2d 667 (Aysisayh 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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Aysisayh v. State, 752 So. 2d 667, 2000 Fla. App. LEXIS 457, 2000 WL 61761 (Fla. Ct. App. 2000).

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Opinion

PER CURIAM.

Waadew Aysisayh appeals the summary denial of his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Ay-sisayh was convicted of sexual battery and sentenced as a habitual offender on May 8, 1980. Aysisayh alleges that he was convicted of life felony sexual battery¹ and that therefore the imposition of a habitual offender sentence was illegal. The habitual offender statute in effect at the time Aysisayh’s offenses were committed did not apply to life felonies. See section 775.084, Fla. Stat. (1979); Lamont v. State, 610 So.2d 435 (Fla.1992) (holding that a similarly worded statute did not apply to life felonies). If Aysisayh’s claim is correct, he is entitled to relief. See Nathan v. State, 689 So.2d 1150 (Fla. 2d DCA 1997).

Because the documents attached by the trial court do not refute this claim, we reverse and remand. On remand, the trial court may again summarily deny the claim if record attachments conclusively show that Aysisayh was convicted of a lesser degree of sexual battery. If Aysisayh’s claim proves true, the trial court must [668]*668remove the habitual offender designation, but need not resentence him because his thirty-year sentence was the minimum then allowed for a life felony. See, e.g., Miller v. State, 696 So.2d 913 (Fla. 2d DCA 1997)(holding that where an improperly imposed habitual sentence was within the guidelines, the court on remand need only remove the habitual offender designation and need not resentence defendant).

The trial court’s order is affirmed as to Aysisayh’s other claims.

Affirmed in part; reversed in part; and remanded.

FULMER, A.C.J., and CASANUEVA and DAVIS, JJ., Concur.

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PER CURIAM.

Waadew Aysisayh appeals the summary denial of his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Ay-sisayh was convicted of sexual battery and sentenced as a habitual offender on May 8, 1980. Aysisayh alleges that he was convicted of life felony sexual battery¹ and that therefore the imposition of a habitual offender sentence was illegal. The habitual offender statute in effect at the time Aysisayh’s offenses were committed did not apply to life felonies. See section 775.084, Fla. Stat. (1979); Lamont v. State, 610 So.2d 435 (Fla.1992) (holding that a similarly worded statute did not apply to life felonies). If Aysisayh’s claim is correct, he is entitled to relief. See Nathan v. State, 689 So.2d 1150 (Fla. 2d DCA 1997).

Because the documents attached by the trial court do not refute this claim, we reverse and remand. On remand, the trial court may again summarily deny the claim if record attachments conclusively show that Aysisayh was convicted of a lesser degree of sexual battery. If Aysisayh’s claim proves true, the trial court must [668]*668remove the habitual offender designation, but need not resentence him because his thirty-year sentence was the minimum then allowed for a life felony. See, e.g., Miller v. State, 696 So.2d 913 (Fla. 2d DCA 1997)(holding that where an improperly imposed habitual sentence was within the guidelines, the court on remand need only remove the habitual offender designation and need not resentence defendant).

The trial court’s order is affirmed as to Aysisayh’s other claims.

Affirmed in part; reversed in part; and remanded.

FULMER, A.C.J., and CASANUEVA and DAVIS, JJ., Concur.

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752 So. 2d 667, 2000 Fla. App. LEXIS 457, 2000 WL 61761, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aysisayh-v-state-fladistctapp-2000.

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