5D01-3880 Payton v. State

State: Florida

Court: Florida Fifth District Court

Docket No: 5D01-3880

Case Date: 02/04/2002

Preview:IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT JANUARY TERM 2002

JOSEPH R. PAYTON, Appellant, v. STATE OF FLORIDA, Appellee. ______________________________/ Opinion filed February 8, 2002 3.800 Appeal from the Circuit Court for Brevard County, John M. Griesbaum, Judge. Joseph R. Payton, Lawtey, pro se. No Appearance for Appellee. SHARP, W., J. Payton appeals from the summary denial of his motion to correct sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Payton raised some issues which do not relate to his sentence and are successive, because Payton previously filed a 3.850 motion. We find the balance of Payton's claims refuted by the record and without merit. First, Payton asserts that the state failed to provide proper notice of its intent to seek habitual felony offender penalties. This is a procedural issue which should have been raised on direct appeal, and is not the kind of error which alone produces an illegal sentence. See Hope v. State, 766 So.2d 343 (Fla. 5th CASE NO. 5D01-3880

DCA 2000). The record includes the previous order adjudicating Payton as a habitual felony offender. That order with its attachments shows that the proper findings were made, including that Payton was convicted of two or more prior felonies and that one did not relate to the purchase or possession of a controlled substance. See

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