Senelus v. State

District Court of Appeal of Florida

Senelus v. State

99 So. 3d 517, 2011 WL 2500433, 2011 Fla. App. LEXIS 9599

CourtDistrict Court of Appeal of Florida

DecidedJune 22, 2011

DocketNo. 3D10-1998

StatusPublished

This text of 99 So. 3d 517 (Senelus 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

Senelus v. State, 99 So. 3d 517, 2011 WL 2500433, 2011 Fla. App. LEXIS 9599 (Fla. Ct. App. 2011).

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Opinion

SHEPHERD, J.

The defendant, Steve Senelus, appeals an order denying his motion for postcon-viction relief filed under Florida Rules of Criminal Procedure 3.850 on the ground the motion was successive. We remand for further proceedings.

The defendant was convicted of grand theft of a truck and trailer, and robbery for taking the contents of a briefcase that was inside the truck. On appeal, we vacated the conviction for grand theft under double-jeopardy principles and remanded for resentencing. See Senelus v. State, 994 So.2d 493 (Fla. 3d DCA 2008). The defendant was resentenced on January 30, 2009.

The only motions the defendant has filed since his appeal are a petition for habeas corpus, alleging ineffective assistance of appellate counsel with this Court, and a motion to correct an illegal sentence under Florida Rules of Criminal Procedure 3.800 with the trial court. Because the defendant has not filed a prior Rule 3.850 motion alleging ineffective assistance of trial counsel, it was error for the trial court to deny the motion as successive. Thus, we reverse the order of denial and remand for an evidentiary hearing or for the attachment of record excerpts conclusively showing that the defendant is not entitled to any relief. See Fla. RApp. P. 9.141(b)(2)(D).

[518]*518Reversed and remanded for further proceedings.

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SHEPHERD, J.

The defendant, Steve Senelus, appeals an order denying his motion for postcon-viction relief filed under Florida Rules of Criminal Procedure 3.850 on the ground the motion was successive. We remand for further proceedings.

The defendant was convicted of grand theft of a truck and trailer, and robbery for taking the contents of a briefcase that was inside the truck. On appeal, we vacated the conviction for grand theft under double-jeopardy principles and remanded for resentencing. See Senelus v. State, 994 So.2d 493 (Fla. 3d DCA 2008). The defendant was resentenced on January 30, 2009.

The only motions the defendant has filed since his appeal are a petition for habeas corpus, alleging ineffective assistance of appellate counsel with this Court, and a motion to correct an illegal sentence under Florida Rules of Criminal Procedure 3.800 with the trial court. Because the defendant has not filed a prior Rule 3.850 motion alleging ineffective assistance of trial counsel, it was error for the trial court to deny the motion as successive. Thus, we reverse the order of denial and remand for an evidentiary hearing or for the attachment of record excerpts conclusively showing that the defendant is not entitled to any relief. See Fla. RApp. P. 9.141(b)(2)(D).

[518]*518Reversed and remanded for further proceedings.

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Bluebook (online)

99 So. 3d 517, 2011 WL 2500433, 2011 Fla. App. LEXIS 9599, Counsel Stack Legal Research, https://law.counselstack.com/opinion/senelus-v-state-fladistctapp-2011.

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