Wilcher v. State

District Court of Appeal of Florida

Wilcher v. State

7 So. 3d 639, 2009 Fla. App. LEXIS 3441, 2009 WL 1066085

Procedural entryThis page is a short order in Wilcher v. State. Read the opinion of the Court — 946 So. 2d 114 →

District Court of Appeal of Florida·Decided April 22, 2009·No. 4D08-4976·Published

Opinion

PER CURIAM.

Horace Wilcher (defendant) appeals the denial of his rule 3.800(a) motion to correct illegal sentence, claiming his habitual violent felony offender sentence was illegal and the habitual designation should be stricken from the records because he received no notice of the state’s intent to habitualize him prior to his sentencing hearing.

We disagree with the trial court’s conclusion that this issue was addressed when this court affirmed defendant’s adjudication as a HVFO on direct appeal, or that his previous rule 3.800(a) motion raised similar grounds. Nothing was attached to the order of denial showing that this issue was raised on direct appeal or in the prior rule 3.800(a) motion, and this court’s records indicate it was not.

However, such a claim is not cognizable in a rule 3.800(a) motion, see, e.g., Hollis v. State, 763 So.2d 1155 (Fla. 4th DCA 2000), and defendant is out of time to file a rule 3.850 motion.

Affirmed.

POLEN, TAYLOR and HAZOURI, JJ., concur.

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PER CURIAM.

Horace Wilcher (defendant) appeals the denial of his rule 3.800(a) motion to correct illegal sentence, claiming his habitual violent felony offender sentence was illegal and the habitual designation should be stricken from the records because he received no notice of the state’s intent to habitualize him prior to his sentencing hearing.

We disagree with the trial court’s conclusion that this issue was addressed when this court affirmed defendant’s adjudication as a HVFO on direct appeal, or that his previous rule 3.800(a) motion raised similar grounds. Nothing was attached to the order of denial showing that this issue was raised on direct appeal or in the prior rule 3.800(a) motion, and this court’s records indicate it was not.

However, such a claim is not cognizable in a rule 3.800(a) motion, see, e.g., Hollis v. State, 763 So.2d 1155 (Fla. 4th DCA 2000), and defendant is out of time to file a rule 3.850 motion.

Affirmed.

POLEN, TAYLOR and HAZOURI, JJ., concur.

Wilcher v. State, 7 So. 3d 639, 2009 Fla. App. LEXIS 3441, 2009 WL 1066085 (Fla. Ct. App. 2009).

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Opinion

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