04-2049 MORGAN V. STATE

State: Florida

Court: Florida Third District Court

Docket No: 04-2049 MORGAN V. STATE

Case Date: 11/24/2004

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF. IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM A.D., 2004 LAWRENCE MORGAN, Appellant, vs. THE STATE OF FLORIDA, Appellee. ** ** ** ** ** ** Opinion filed November 24, 2004. An Appeal under Florida Rule of Appellate Procedure 9.141(b) (2) from the Circuit Court for Miami-Dade County, Mary Barzee, Judge. Lawrence Morgan, in proper person. Charles J. Crist, Jr., Attorney General, and Richard L. Polin, Assistant Attorney General, for appellee. Before COPE, GERSTEN and WELLS, JJ. PER CURIAM. Lawrence correct Morgan appeals an order denying Rule his of motion to LOWER TRIBUNAL NO. F00-21538 CASE NO. 3D04-2049

illegal

sentence

under

Florida

Criminal

Procedure 3.800(a).

We affirm.

Defendant-appellant Morgan entered into a plea bargain on six counts of an information. correct illegal sentence, Thereafter he filed a motion to arguing that the statute of

limitations had expired on counts three, five, and six prior to the time that the information was filed. He requested that the

sentences be vacated on those counts, and the charges dismissed. He did not, however, request withdrawal of the plea. court denied the motion and the defendant has appealed. First, appropriate conviction. a motion to for correct illegal a sentence but is not an a The trial

procedure

challenging

sentence,

See Wiley v. State, 604 So. 2d 6, 7 (Fla. 3d DCA

1992); State v. Spella, 567 So. 2d 1051, 1052 (Fla. 5th DCA 1990). Since the defendant is attempting to vacate his

convictions as well as sentences, the appropriate procedure is a motion under Florida Rule of Criminal Procedure 3.850. Second, we agree with Judge Barzee that the statute of limitations claim that the defendant attempts to raise involves a factual issue which cannot be determined from the face of the record and thus cannot be brought under Rule 3.800(a). That is

so because the three-year statute of limitations cited by the defendant is subject to being extended for an additional three years "when the defendant is continuously absent from the state or has no reasonably ascertainable place of abode or work within the state."

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