Futch v. State

District Court of Appeal of Florida

Futch v. State

781 So. 2d 462, 2001 Fla. App. LEXIS 2413, 2001 WL 219993

CourtDistrict Court of Appeal of Florida

DecidedMarch 7, 2001

DocketNo. 2D00-4391

StatusPublished

Cited by1 cases

This text of 781 So. 2d 462 (Futch 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

Futch v. State, 781 So. 2d 462, 2001 Fla. App. LEXIS 2413, 2001 WL 219993 (Fla. Ct. App. 2001).

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Opinion

PER CURIAM.

Donald Arthur Futch challenges the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Procedure 3.800(a) in which he alleged that he was sentenced under an unconstitutional version of the 1995 guidelines. As the trial court acknowledged in its order, Futch’s offenses fell within the Heggs window; however, the sentences imposed were not a departure under the 1994 guidelines, and Futch is not entitled to relief. See Gonzales v. State, 779 So.2d 520 (Fla. 2d DCA 2000). Futch’s sworn motion also contained a claim that his plea was involuntary based on the discrepancy in the sentencing range between the 1994 sentencing guidelines and the unconstitutional version of the 1995 guidelines.¹ The trial court denied this claim stating that because Futch’s sentence was not illegal, he was not entitled to withdraw his plea.

Futch entered into a negotiated plea in which he received a below guidelines sentence under the unconstitutional version of the 1995 guidelines. In Murphy v. State, 773 So.2d 1174 (Fla. 2d DCA 2000) (en banc), we held that a defendant who entered into a negotiated plea to the bottom of the unconstitutional version of the 1995 guidelines, but whose sentence was not a departure under the 1994 guidelines, may file a rule 3.850 motion challenging the voluntary and intelligent nature of his plea. In the present case, neither Futch nor the trial court had the benefit of Murphy. Accordingly, we affirm the order of the trial court without prejudice to any right Futch might have to file a timely and legally sufficient rule 3.850 motion challenging the intelligent and voluntary nature of his plea. Any forthcoming rule 3.850 motion filed pursuant to Murphy shall not be considered successive, and Futch may include the claim that he raises in his present motion concerning the vol-untariness of his plea.

Affirmed.

PARKER, A.C.J., and NORTHCUTT and SALCINES, JJ., concur.

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PER CURIAM.

Donald Arthur Futch challenges the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Procedure 3.800(a) in which he alleged that he was sentenced under an unconstitutional version of the 1995 guidelines. As the trial court acknowledged in its order, Futch’s offenses fell within the Heggs window; however, the sentences imposed were not a departure under the 1994 guidelines, and Futch is not entitled to relief. See Gonzales v. State, 779 So.2d 520 (Fla. 2d DCA 2000). Futch’s sworn motion also contained a claim that his plea was involuntary based on the discrepancy in the sentencing range between the 1994 sentencing guidelines and the unconstitutional version of the 1995 guidelines.¹ The trial court denied this claim stating that because Futch’s sentence was not illegal, he was not entitled to withdraw his plea.

Futch entered into a negotiated plea in which he received a below guidelines sentence under the unconstitutional version of the 1995 guidelines. In Murphy v. State, 773 So.2d 1174 (Fla. 2d DCA 2000) (en banc), we held that a defendant who entered into a negotiated plea to the bottom of the unconstitutional version of the 1995 guidelines, but whose sentence was not a departure under the 1994 guidelines, may file a rule 3.850 motion challenging the voluntary and intelligent nature of his plea. In the present case, neither Futch nor the trial court had the benefit of Murphy. Accordingly, we affirm the order of the trial court without prejudice to any right Futch might have to file a timely and legally sufficient rule 3.850 motion challenging the intelligent and voluntary nature of his plea. Any forthcoming rule 3.850 motion filed pursuant to Murphy shall not be considered successive, and Futch may include the claim that he raises in his present motion concerning the vol-untariness of his plea.

Affirmed.

PARKER, A.C.J., and NORTHCUTT and SALCINES, JJ., concur.

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781 So. 2d 462, 2001 Fla. App. LEXIS 2413, 2001 WL 219993, Counsel Stack Legal Research, https://law.counselstack.com/opinion/futch-v-state-fladistctapp-2001.

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