Stacey v. State

461 So. 2d 1000, 10 Fla. L. Weekly 64, 1984 Fla. App. LEXIS 16292

• Court: District Court of Appeal of Florida
• Decided: December 20, 1984
• Docket: No. BA-115
• Status: Published

Opinion

MILLS, Judge.

Stacey appeals from an order summarily denying his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. We reverse and remand for an evidentiary hearing.

The motion alleged the sentencing court retained jurisdiction over the first one-third of Stacey’s 99-year sentence for armed robbery although the crime was committed before the effective date of Section 947.-16(3), Florida Statutes (Supp.1978), the law allowing retention of jurisdiction. ■ The motion also alleged ineffective assistance of trial counsel.

The trial court found the allegation regarding retention of jurisdiction unreviewa-ble because (1) Stacey did not object to retention at sentencing, and (2) the issue was not raised on direct appeal. 421 So.2d 824. The trial court found the allegations regarding ineffective assistance of counsel conclusively refuted by the record and, even if true, not legally sufficient to allege ineffective assistance of counsel.

The motion alleges the crime for which Stacey was convicted occurred on 8 May 1978. Section 947.16(3) took effect on 19 June 1978. Thus, if this allegation is true, the sentencing court erred. State v. Williams, 397 So.2d 663 (Fla.1981).

Stacey’s failure to object to retention of jurisdiction at sentencing does not preclude review by way of a Rule 3.850 motion. Cofield v. State, 453 So.2d 409 (Fla. 1st DCA 1984). Nor does his failure to raise the issue on direct appeal preclude review by way of a Rule 3.850 motion because, under Cofield and Fredricks v. State, 440 So.2d 433 (Fla. 1st DCA 1983), he was precluded from raising the issue on direct appeal absent objection at sentencing.¹

We agree with the trial court as to Stacey’s other allegations regarding ineffective assistance of counsel.

Reversed and remanded for an evidentia-ry hearing on the retention of jurisdiction issue.

SHIVERS and WENTWORTH, JJ„ concur.

1 . In view of State v. Rhoden, 448 So.2d 1013 (Fla.1984), the Cofield court certified the preservation for direct appeal issue to the Florida Supreme Court as a question of great public importance.