Kevin Jones v. State of Florida

• Court: District Court of Appeal of Florida
• Decided: September 15, 2021
• Docket: 21-0802
• Status: Published

Opinion

FIRST DISTRICT COURT OF APPEAL STATE OF FLORIDA _____________________________

No. 1D21-802 _____________________________

KEVIN JONES,

Appellant,

v.

STATE OF FLORIDA,

Appellee. _____________________________

On appeal from the Circuit Court for Duval County. Meredith Charbula, Judge.

September 15, 2021

PER CURIAM.

Kevin Jones appeals from an order summarily denying his motion to correct illegal sentence filed under Florida Rule of Criminal Procedure 3.800(a). Jones asserted that he was entitled to relief from his sentence because he was convicted by a six-person jury, rather than a twelve-person jury. Before his trial in 2013, Jones waived his right to a twelve-person jury in exchange for the State’s agreement not to seek the death penalty on the charge of first-degree murder.

The trial court correctly denied postconviction relief because Jones’ attack on his conviction was not cognizable under rule 3.800(a). Because the claim attacks his conviction, not the legality of his sentence, Jones should have raised the claim in a rule 3.850 motion. See Fla. R. Crim. P. 3.850(a). But even if considered under rule 3.850, the trial court correctly denied relief because Jones filed the motion outside the two-year limit set forth in rule 3.850. See Fla. R. Crim. P. 3.850(b).

AFFIRMED.

ROWE, C.J., and LEWIS and WINOKUR, JJ., concur.

_____________________________

Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331. _____________________________

Kevin Jones, pro se, Appellant.

Ashley Moody, Attorney General, Tallahassee, for Appellee.