Oliva v. State

815 So. 2d 714, 2002 Fla. App. LEXIS 5205, 2002 WL 662911

Opinion

PER CURIAM.

The trial court denied appellant’s motion for relief pursuant to Florida Rule of Criminal Procedure 3.850, notwithstanding the motion was unsworn. Had the trial court denied the motion solely on that ground, the denial would have been without prejudice to file a properly sworn motion. However, the trial court addressed each of the nine claims for relief, finding some were raised and rejected on appeal, and others were deficient under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We agree.

Appellant has argued for the first time in his brief on appeal that his sentence for trafficking in cocaine between 28 grams and 200 grams, in violation of section 893.135(l)(b)la, Florida Statutes (1995), was not subject to habitual offender sentencing. Our affirmance is without prejudice to appellant’s fifing a rule 3.800(a) motion to correct illegal sentence on that ground, if appropriate.

POLEN, C.J., STONE and MAY, JJ., concur.