Opinion
No. 90-2956.
August 5, 1991.
Appeal from the Circuit Court, Bay County, Don. T. Sirmons, J.
Loring S. Jones, pro se.
No appearance for appellee.
Jones appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. We affirm in part and reverse in part.
Jones' 3.850 motion alleges (1) Jones was improperly habitualized because the trial judge did not show an enhancement is necessary for the protection of the public, and (2) the trial judge added probation conditions to the written order which were not pronounced in open court. The motion was summarily denied solely because Jones had entered into a plea agreement requiring habitualization.
We affirm the trial court's denial of Jones' 3.850 motion as to the first allegation. The plea agreement states as a condition, "Guidelines sentence — habitual offender status not for purposes of enhancing defendant's sentence but for purposes of limiting gain time." Jones does not challenge the voluntariness of the plea; and the requirement that the trial judge find habitualization is necessary for the protection of the public was deleted effective October 1, 1988. King v. State, 557 So.2d 899 (Fla. 5th DCA 1990).
The trial court did not, however, address in any way Jones' allegation that improper probation conditions were imposed. We therefore reverse and remand with directions to attach those portions of the record which conclusively show that Jones is not entitled to relief, or if such showing cannot be determined from the face of the record, conduct an evidentiary hearing. Sullivan v. State, 526 So.2d 1068 (Fla. 1st DCA 1988).
ERVIN, J., concurs.
WOLF, J., dissents, with an opinion.
The majority would require the trial court to address that portion of appellant's 3.850 motion which alleges that certain conditions of probation in the written order were not pronounced in open court. Nowhere in Jones' petition does he state the nature of the conditions which were added, nor does he claim that the conditions were not statutorily authorized.
Rule 3.850, Florida Rules of Civil Procedure, does not authorize relief based upon grounds which could have or should have been raised on direct appeal of the judgment and sentence. Caristi v. State, 578 So.2d 769 (Fla. 1st DCA 1991). The allegations in this petition could have been raised on direct appeal. Rowland v. State, 548 So.2d 812 (Fla. 1st DCA 1989). An illegal sentence may be challenged either by a direct appeal or collateral attack. See Lentz v. State, 567 So.2d 997 (Fla. 1st DCA 1990). The allegations in the instant case, however, do not pertain to a sentence which is illegal (one which imposes a sentence which is not statutorily authorized as in Lentz), but rather only pertain to the manner in which the sentence was imposed. Thus, the issues raised by petitioner are not proper for a rule 3.850 motion.
Where a motion is legally insufficient on its face, there is no requirement that the trial judge attach those portions of the record which conclusively show that Jones is not entitled to relief or to conduct an evidentiary hearing. Rule 3.850, Fla. R.Civ.P. I would affirm.