Bedford v. State

Full title: MARK BEDFORD, Appellant, v. STATE OF FLORIDA, Appellee

Court: District Court of Appeal of Florida, Fourth District

Date published: Sep 19, 2007

No. 4D07-1405 (Fla. Dist. Ct. App. Sep. 19, 2007)

Opinion

No. 4D07-1405.

September 19, 2007.

Appeal of order denying rule 3.850 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Marc H. Gold, Judge; L.T. Case No. 94-10984 CF10A.

Mark Bedford, South Bay, pro se.

Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.

PER CURIAM.

The appellant, Mark Bedford, seeks review of the summary denial of a rule 3.850 motion. The lower court denied relief believing the particular issue raised had been rejected on the merits in one of the several prior motions, and thus procedurally barred. While the lower court has rejected several motions related to this issue, and this Court has affirmed, the particular issue has never been addressed on the merits. We conclude the interest of justice requires review on the merits.

The State charged Bedford by information with delivery of cocaine within 1000 feet of a school, citing violations of sections 893.13(1)(c)(1)(9) and 893.03(2)(a), Florida Statutes. Without objection by the defense attorney, the jury was instructed on a purported lesser included offense of delivery of a counterfeit substance, a violation of section 831.31, Florida Statutes. The jury found Bedford guilty of the purported lesser included offense and the judge imposed a time-served sentence. Bedford did not appeal this conviction or sentence. However, in a failed petition for belated appeal that was denied after an evidentiary hearing, Bedford claimed the conviction should be reversed because it was not a proper lesser-included offense.

Bedford's first rule 3.850 motion raised the same argument raised in the petition for belated appeal, and which has been raised numerous times in subsequent pleadings. No court has yet ruled on the merits of the claim that he was convicted of a crime not charged in the information. We believe the interests of justice require the lower court to review this issue, for the first time, on the merits. See State v. McBride, 848 So.2d 287 (Fla. 2003). As such, we reverse and remand for consideration on the merits.

WARNER, POLEN and HAZOURI, JJ., concur.

Not final until disposition of timely filed motion for rehearing