06-1857 DEBUISSON V. STATE

State: Florida

Court: Florida Third District Court

Docket No: 06-1857 DEBUISSON V. STATE

Case Date: 12/20/2006

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. 2006

RENAUD DEBUISSON, Appellant, vs. THE STATE OF FLORIDA, Appellee.

** ** ** ** ** ** LOWER TRIBUNAL NO. 98-23208 CASE NO. 3D06-1857

Opinion filed December 20, 2006. An Appeal under Florida Rule of Appellate Procedure 9.141(b) (2) from the Circuit Court for Miami-Dade County, Leonard E. Glick, Judge. Thomas John Butler, for appellant. Charles J. Crist, Jr., Attorney General, for appellee. Before RAMIREZ, WELLS, and SUAREZ, JJ. WELLS, Judge. Renaud Debuisson appeals from an order denying his Florida Rule of Criminal in which Procedure he 3.800 that motion the to correct illegal was

sentence

claims

sentence

imposed

vindictive and that he did not have the two felony convictions

necessary to sentence him as a habitual felony offender. affirm.

We

A vindictive sentence claim must be raised in a Rule 3.850 motion, not in a Rule 3.800 motion, and since the conviction and sentences in this case became final more than two years before the instant motion was filed, the motion would, if considered as a Rule 3.850 motion, be untimely. See Wright v. State, 891 So.

2d 618 (Fla. 3d DCA 2005) (finding that a vindictive sentencing claim cannot be raised in a Rule 3.800 motion); Shaw v. State, 780 So. 2d 188, 190 (Fla. 2d DCA 2001) (affirming the denial of a Rule 3.800 motion where, even if treated as a Rule 3.850 motion, it would be untimely). We also find no error in the trial court's order denying relief with regard to Debuisson's claim that he was improperly sentenced as a habitual felony offender without the necessary two prior predicate felonies. was sentenced as a habitual The record reveals that Debuisson violent felony offender under

section 775.084(1)(b), Florida Statutes (1998), which requires only a single prior felony conviction for enhanced sentencing. Accordingly, motion is affirmed. the order denying Debuisson's Rule 3.800

2

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