Crenshaw v. State

Full title: BRIAN CRENSHAW, Appellant, v. STATE OF FLORIDA, Appellee.

Court: DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FOURTH DISTRICT

Date published: Nov 7, 2012

No. 4D11-4345 (Fla. Dist. Ct. App. Nov. 7, 2012)

Opinion

No. 4D11-4345

11-07-2012

BRIAN CRENSHAW, Appellant, v. STATE OF FLORIDA, Appellee.

Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant. No appearance required for appellee.

PER CURIAM

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We affirm the summary denial of appellant's motion for postconviction relief. Our affirmance is without prejudice to the appellant being allowed to file an amended motion pursuant to Spera v. State, 971 So. 2d 754 (Fla. 2007), alleging the claim argued in his initial brief on appeal. In the brief, he claims ineffective assistance of counsel for counsel's failure to object to the trial court's refusal to apply appellant's youthful offender status upon violation of probation for a crime on which appellant was originally sentenced as a youthful offender. This precise issue was not raised in the motion for postconviction relief, but the brief and attached portions of the record show that it presents an arguable claim. Compare Christian v. State, 84 So. 3d 437, 444-45 (Fla. 5th DCA 2012) (youthful offender who violates probation is still entitled to be sentenced as a youthful offender on original offense; even though six-year cap may not apply, other aspects of youthful offender sentencing would still apply), with Rogers v. State, 972 So. 2d 1017, 1019 (Fla. 4th DCA 2008) (youthful offender status may be revoked when charged by information with a new, substantive offense.) Therefore, under Spera, appellant should be allowed to amend. 971 So. 2d at 758. Appellant may file an amended motion for postconviction relief within thirty days of the mandate. WARNER, CIKLIN and GERBER, JJ., concur.

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Appeal of order denying rule 3.850 motion from the Circuit Court for the Nineteenth Judicial Circuit, St. Lucie County; Dan L. Vaughn, Judge; L.T. Case Nos. 562007CF000147B and 562008CF000505A.

Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.

No appearance required for appellee.

Not final until disposition of timely filed motion for rehearing.