Keel v. State

District Court of Appeal of Florida

Keel v. State

750 So. 2d 154, 2000 Fla. App. LEXIS 927, 2000 WL 125959

CourtDistrict Court of Appeal of Florida

DecidedFebruary 4, 2000

DocketNo. 1D99-2752

StatusPublished

This text of 750 So. 2d 154 (Keel 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

Keel v. State, 750 So. 2d 154, 2000 Fla. App. LEXIS 927, 2000 WL 125959 (Fla. Ct. App. 2000).

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Opinion

PER CURIAM.

The trial court denied appellant’s motion for post conviction relief on the basis that the motion was not timely filed pursuant to Florida Rule of Criminal Procedure 3.850. [155]*155Although appellant styled his motion for post conviction relief as having been brought pursuant to Rule 3.850, it appears to us that the actual allegations made in support of the third ground raised in the motion are, on their face, sufficient to allege both that appellant was subjected to a double jeopardy violation on re-sentencing, and that the court records will, on their face, demonstrate entitlement to relief without the necessity of an evidentiary hearing. See Hopping v. State, 708 So.2d 263 (Fla.1998). Under these circumstances, the trial court should have looked beyond the untimeliness of the motion insofar as it properly raised an illegal sentence that could be determined without an evidentiary hearing. We therefore REVERSE in part, and REMAND this matter to the trial court with directions that the third ground of appellant’s motion be treated as a motion under Florida Rule of Criminal Procedure 3.800. The order is otherwise AFFIRMED.

KAHN, BENTON, JJ. and DOUGLASS B. SHIVERS, Senior Judge, CONCUR.

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PER CURIAM.

The trial court denied appellant’s motion for post conviction relief on the basis that the motion was not timely filed pursuant to Florida Rule of Criminal Procedure 3.850. [155]*155Although appellant styled his motion for post conviction relief as having been brought pursuant to Rule 3.850, it appears to us that the actual allegations made in support of the third ground raised in the motion are, on their face, sufficient to allege both that appellant was subjected to a double jeopardy violation on re-sentencing, and that the court records will, on their face, demonstrate entitlement to relief without the necessity of an evidentiary hearing. See Hopping v. State, 708 So.2d 263 (Fla.1998). Under these circumstances, the trial court should have looked beyond the untimeliness of the motion insofar as it properly raised an illegal sentence that could be determined without an evidentiary hearing. We therefore REVERSE in part, and REMAND this matter to the trial court with directions that the third ground of appellant’s motion be treated as a motion under Florida Rule of Criminal Procedure 3.800. The order is otherwise AFFIRMED.

KAHN, BENTON, JJ. and DOUGLASS B. SHIVERS, Senior Judge, CONCUR.

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Bluebook (online)

750 So. 2d 154, 2000 Fla. App. LEXIS 927, 2000 WL 125959, Counsel Stack Legal Research, https://law.counselstack.com/opinion/keel-v-state-fladistctapp-2000.

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