Kelly v. State

District Court of Appeal of Florida

Kelly v. State

642 So. 2d 773, 1994 Fla. App. LEXIS 8649, 1994 WL 478580

CourtDistrict Court of Appeal of Florida

DecidedSeptember 7, 1994

DocketNo. 94-02002

StatusPublished

Cited by1 cases

This text of 642 So. 2d 773 (Kelly 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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Kelly v. State, 642 So. 2d 773, 1994 Fla. App. LEXIS 8649, 1994 WL 478580 (Fla. Ct. App. 1994).

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Opinion

PER CURIAM.

David F. Kelly appeals the summary dismissal of his motion for posteonviction relief sought pursuant to Florida Rule of Criminal Procedure 3.850. Because Kelly raises a claim of an illegal sentence, we remand for the trial court to reconsider the motion pursuant to Florida Rule of Criminal Procedure 3.800.

Although Kelly’s explanation of the sentencing scheme is tortuously confusing, he asserts that his sentences, which were imposed on two different dates, are illegal as the sentencing scheme allows a gap in time between probation and incarceration in the various sentences. The trial court dismissed the motion as successive to two other post-conviction relief motions and noted that it would also be time barred. However, in accordance with Rule 3.800 a trial court has the authority to correct an illegal sentence at anytime. Brown v. State, 508 So.2d 522, 523 n. 2 (Fla. 2d DCA 1987). Accordingly, we reverse the order of dismissal and remand for treatment of Kelly’s motion as one pursuant to Florida Rule of Criminal Procedure 3.800.

Reversed and Remanded.

SCHOONOVER, A.C.J., and ALTENBERND and LAZZARA, JJ., concur.

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PER CURIAM.

David F. Kelly appeals the summary dismissal of his motion for posteonviction relief sought pursuant to Florida Rule of Criminal Procedure 3.850. Because Kelly raises a claim of an illegal sentence, we remand for the trial court to reconsider the motion pursuant to Florida Rule of Criminal Procedure 3.800.

Although Kelly’s explanation of the sentencing scheme is tortuously confusing, he asserts that his sentences, which were imposed on two different dates, are illegal as the sentencing scheme allows a gap in time between probation and incarceration in the various sentences. The trial court dismissed the motion as successive to two other post-conviction relief motions and noted that it would also be time barred. However, in accordance with Rule 3.800 a trial court has the authority to correct an illegal sentence at anytime. Brown v. State, 508 So.2d 522, 523 n. 2 (Fla. 2d DCA 1987). Accordingly, we reverse the order of dismissal and remand for treatment of Kelly’s motion as one pursuant to Florida Rule of Criminal Procedure 3.800.

Reversed and Remanded.

SCHOONOVER, A.C.J., and ALTENBERND and LAZZARA, JJ., concur.

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642 So. 2d 773, 1994 Fla. App. LEXIS 8649, 1994 WL 478580, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelly-v-state-fladistctapp-1994.

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