Jackson v. State

707 So. 2d 1211, 1998 Fla. App. LEXIS 4220, 1998 WL 176641

Opinion

W. SHARP, Judge.

Jackson appeals from the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850, in which he claims that he has newly discovered evidence, and that he received an illegal sentence. The trial court properly denied relief, finding that the matters raised were not truly newly discovered evidence nor was there an illegal sentence. We affirm.

In addition, we find that the lawfulness of Jackson’s sentence, i.e., whether he should have been given an habitual offender sentence and whether he should have been sentenced to a third-degree rather than a second-degree felony, are issues raised in his prior collateral proceedings. Since these issues were previously considered and rejected by this court, they are successive and procedurally barred. Fla. R.Crim. P. 3.850®. See Penn v. State, 688 So.2d 450 (Fla. 5th DCA 1997) (successive motion properly denied). See also O'Brien v. State, 689 So.2d 336 (Fla. 5th DCA), rev. denied, 697 So.2d 511 (Fla.1997) (procedural bars to be strictly construed under section 924.051(9), Florida Statutes); Bradley v. State, 703 So.2d 1176 (Fla. 5th DCA 1997) (frivolous suit can subject prisoner to gain time forfeiture).

AFFIRMED.

DAUKSCH and HARRIS, JJ., concur.