Corbin v. State

District Court of Appeal of Florida

Corbin v. State

635 So. 2d 92, 1994 Fla. App. LEXIS 848, 1994 WL 37037

CourtDistrict Court of Appeal of Florida

DecidedFebruary 11, 1994

DocketNo. 93-7

StatusPublished

This text of 635 So. 2d 92 (Corbin 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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Corbin v. State, 635 So. 2d 92, 1994 Fla. App. LEXIS 848, 1994 WL 37037 (Fla. Ct. App. 1994).

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Opinion

PER CURIAM.

The appellant challenges an order of the trial court summarily denying his motion for post-conviction relief pursuant to Rule 3.850, Florida Rules of Criminal Procedure. The appellant’s motion is facially insufficient, and was properly subject to summary denial, for failing to include the oath required by Rules 3.850 and 3.987. Woolbright v. State, 606 So.2d 379 (Fla. 1st DCA 1992).¹

The motion was also insufficient for failing to allege facts essential to appellant’s claim that he was improperly sentenced as an habitual felony offender under the 1989 amendments that were held unconstitutional in State v. Johnson, 616 So.2d 1 (Fla.1993). Specifically, the motion does not allege that appellant’s offense was committed within the “window period” during which the 1989 amendments were violative of the single-subject rule (October 1, 1989 — May 2, 1991). Neither does it allege that appellant’s habitual offender sentence was in any way produced by the amendments, which allowed habitualization based upon prior out-of-state convictions. Consequently, we cannot determine that appellant was entitled to consideration of this issue. See Lee v. State, 615 So.2d 232 (Fla. 1st DCA 1993); Perez v. State, 606 So.2d 756 (Fla. 1st DCA 1992).

[93]*93We therefore affirm the order herein appealed, without prejudice to the filing of a properly sworn 3.850 motion which alleges and shows that, absent the amendments, appellant would not have been habitualized.

BOOTH, MINER and KAHN, JJ., concur.

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PER CURIAM.

The appellant challenges an order of the trial court summarily denying his motion for post-conviction relief pursuant to Rule 3.850, Florida Rules of Criminal Procedure. The appellant’s motion is facially insufficient, and was properly subject to summary denial, for failing to include the oath required by Rules 3.850 and 3.987. Woolbright v. State, 606 So.2d 379 (Fla. 1st DCA 1992).¹

The motion was also insufficient for failing to allege facts essential to appellant’s claim that he was improperly sentenced as an habitual felony offender under the 1989 amendments that were held unconstitutional in State v. Johnson, 616 So.2d 1 (Fla.1993). Specifically, the motion does not allege that appellant’s offense was committed within the “window period” during which the 1989 amendments were violative of the single-subject rule (October 1, 1989 — May 2, 1991). Neither does it allege that appellant’s habitual offender sentence was in any way produced by the amendments, which allowed habitualization based upon prior out-of-state convictions. Consequently, we cannot determine that appellant was entitled to consideration of this issue. See Lee v. State, 615 So.2d 232 (Fla. 1st DCA 1993); Perez v. State, 606 So.2d 756 (Fla. 1st DCA 1992).

[93]*93We therefore affirm the order herein appealed, without prejudice to the filing of a properly sworn 3.850 motion which alleges and shows that, absent the amendments, appellant would not have been habitualized.

BOOTH, MINER and KAHN, JJ., concur.

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635 So. 2d 92, 1994 Fla. App. LEXIS 848, 1994 WL 37037, Counsel Stack Legal Research, https://law.counselstack.com/opinion/corbin-v-state-fladistctapp-1994.

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