Strawder v. State

District Court of Appeal of Florida

Strawder v. State

786 So. 2d 1259, 2001 Fla. App. LEXIS 8095, 2001 WL 669307

District Court of Appeal of Florida·Decided June 15, 2001·No. No. 2D01-139·Published·Cited by 1 cases

Opinion

SILBERMAN, Judge.

Damita Strawder timely appeals the denial of her motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Although Strawder raised four claims in the motion, she has abandoned every claim but the third, which seeks resentencing under Heggs v. State, 759 So.2d 620 (Fla.2000) (declaring 1995 guidelines unconstitutional). The tri[1260] al court treated the motion as one filed under rule 3.800(a); the trial court denied the motion because it found that Straw-der’s sentence resulted from a plea agreement for a specified number of years. Because Strawder’s sentence does not constitute a departure sentence under the 1994 guidelines, we affirm. It appears, however, that Strawder may be entitled to challenge the voluntary and intelligent nature of her plea. Therefore, we affirm without prejudice to her right to file an amended motion under rule 8.850 seeking to withdraw her plea. See Murphy v. State, 773 So.2d 1174 (Fla. 2d DCA 2000) (en banc). The filing of such a motion shall not be considered successive.

„ Affirmed.

THREADGILL, A.C.J., and DAVIS, J., Concur.

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SILBERMAN, Judge.

Damita Strawder timely appeals the denial of her motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Although Strawder raised four claims in the motion, she has abandoned every claim but the third, which seeks resentencing under Heggs v. State, 759 So.2d 620 (Fla.2000) (declaring 1995 guidelines unconstitutional). The tri[1260] al court treated the motion as one filed under rule 3.800(a); the trial court denied the motion because it found that Straw-der’s sentence resulted from a plea agreement for a specified number of years. Because Strawder’s sentence does not constitute a departure sentence under the 1994 guidelines, we affirm. It appears, however, that Strawder may be entitled to challenge the voluntary and intelligent nature of her plea. Therefore, we affirm without prejudice to her right to file an amended motion under rule 8.850 seeking to withdraw her plea. See Murphy v. State, 773 So.2d 1174 (Fla. 2d DCA 2000) (en banc). The filing of such a motion shall not be considered successive.

„ Affirmed.

THREADGILL, A.C.J., and DAVIS, J., Concur.

Strawder v. State, 786 So. 2d 1259, 2001 Fla. App. LEXIS 8095, 2001 WL 669307 (Fla. Ct. App. 2001).

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Opinion

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