Smith v. State

20 Citing cases

  1. Rogers v. Sec'y, Dep't of Corr.

    Case No. 8:17-cv-2680-T-33SPF (M.D. Fla. Jun. 27, 2019)   Cited 2 times   1 Legal Analyses

    "A double jeopardy argument is a challenge to the judgment, not the sentence." Smith v. State, 886 So.2d 336, 337 (Fla. 5th DCA 2004). A double jeopardy challenge raises factual questions regarding the underlying conviction, which cannot be resolved from the face of the judgment.

  2. Rainey v. Secretary for Dept. of Corrections

    443 F.3d 1323 (11th Cir. 2006)   Cited 27 times

    The same rule obtains as a matter of Florida law. See, e.g., Smith v. State, 886 So.2d 336, 338 (Fla. 5th DCA 2004) (concluding "the resentencing did not affect the finality of [the appellant's] judgment [of conviction]"). While the interpretation of § 2244 is a matter of federal law, we remain sensitive to state law where appropriate.

  3. Juarez v. Inch

    No. 19-23074-CV-KING (S.D. Fla. Mar. 17, 2021)

    Also, when denying relief, the trial court noted that Petitioner was raising a “Double Jeopardy violation” which was not “not cognizable under a Rule 3.800 motion to correct an illegal sentence, ” citing Coughlin v. State, 932 So.2d 1224 (Fla. 2d DCA 2006); Smith v. State, 886 So.2d 336 (Fla. 5th DCA 2004). [ECF No. 15-4, Ex. X at 90]. The court further found Petitioner was “unable to proceed” under a habeas corpus petition, because the issues raised in the filing “are those cognizable in a Rule 3.

  4. Burns v. Inch

    3:19cv394/LAC/EMT (N.D. Fla. Dec. 8, 2020)   Cited 3 times

    Because the trial court corrected Burns' sentence after the conclusion of direct appeal proceedings, the resentencing did not affect the finality date of the judgment and sentence. See Zeigler v. State, 632 So.2d 48, 50 (Fla. 1993) (although defendant's death penalty was vacated in 1988, the two-year period for bringing claims attacking the judgment under Rule 3.850 expired on January 1, 1987, because the information upon which the claims were based was ascertainable prior to the finality date of the judgment and sentence); Gillis v. State, 32 So.3d 681, 682 (Fla. 2D DCA 2010) (Mem) (defendant's resentencing, which occurred after direct review proceedings concluded, did not toll two-year time limit for filing Rule 3.850 motion); O'Neill v. State, 6 So.3d 630, 630 (Fla. 2d DCA 2009) (same); Marrero v. State, 967 So.2d 934, 936 (Fla. 2d DCA 2007) (same); Smith v. State, 886 So.2d 336, 338 (Fla. 5th DCA 2004) (defendant's resentencing after direct appeal concluded did not affect the finality of his judgment; therefore, Rule 3.850 motion presenting double jeopardy challenge to the judgment, filed more than two years from the date of the judgment, was time-barred); Kissel v. State, 757 So.2d 631 (Fla. 5th DCA 2000) (although defendant was resentenced pursuant to a 3.800(a) motion, the two-year limitation period for issues raised in a 3.850 motion attacking the judgment commenced when the judgment became final, not when defendant was resentenced). Additionally, because the trial court corrected Burns' sentence after the conclusion of direct appeal proceedings, his case is distinguishable from cases where the courts determined that resentencing affected the finality date under Rule 3.850(b), because it occurred prior to conclusion of direct appeal proceedings.

  5. Coughlin v. Secretary, Department of Corrections

    Case No. 8:07-cv-124-T-23TBM (M.D. Fla. Jul. 29, 2010)

    A double jeopardy claim is an argument challenging the conviction, not the sentence. As such, this claim must be raised pursuant to Fla. R. Crim. P. 3.850. McCraney v. State, 830 So. 2d 262, 262 (Fla. 5th DCA 2002); see also Smith v. State, 886 So. 2d 336 (Fla. 5th DCA 2004). Further, this claim is not cognizable pursuant to Fla. R. Crim. P. 3.800(a) since consideration of the merits would require an evidentiary hearing. It is generally recognized that convictions for both attempted murder in the first degree and attempted felony murder arising from the same criminal act violate double jeopardy protections.

  6. Velardo v. Lauten

    Case No. 6:05-cv-751-Orl-19DAB (M.D. Fla. Mar. 2, 2006)

    Petitioner maintains that there was a Double Jeopardy violation based on the convictions/sentences for both grand theft and scheme to defraud. The Court notes that a Double Jeopardy argument is a challenge to the judgment, not the sentence, Smith v. State, 886 So. 2d 336 (Fla. 5th DCA), cause dismissed, 902 So. 2d 792 (Fla. 2004), and a Double Jeopardy claim should be raised on direct appeal. See Morgan v. State, 912 So. 2d 642 (Fla. 5th DCA 2005). Pursuant to 28 U.S.C. § 2244,

  7. Rodriguez v. State

    295 So. 3d 849 (Fla. Dist. Ct. App. 2020)   Cited 1 times

    800(a) does not provide an appropriate remedy." Smith v. State, 886 So. 2d 336, 337 (Fla. 5th DCA 2004). Accordingly, we affirm the trial court's denial of Rodriguez's double jeopardy claim.

  8. Masters v. State

    187 So. 3d 1244 (Fla. Dist. Ct. App. 2016)

    2003); Tucker v. State, 726 So.2d 768 (Fla.1999); McDonald v. State, 133 So.3d 530 (Fla. 2d DCA 2013); Boardman v. State, 69 So.3d 367 (Fla. 2d DCA 2011); Doby v. State, 25 So.3d 598 (Fla. 2d DCA 2009); Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009); Knight v. State, 6 So.3d 733 (Fla. 2d DCA 2009); Pratte v. State, 946 So.2d 1184 (Fla. 2d DCA 2006); Shortridge v. State, 884 So.2d 321 (Fla. 2d DCA 2004); Brown v. State, 827 So.2d 1054 (Fla. 2d DCA 2002); Caraballo v. State, 805 So.2d 882 (Fla. 2d DCA 2001); Willis v. State, 785 So.2d 648 (Fla. 2d DCA 2001); Thomas v. State, 126 So.3d 436 (Fla. 4th DCA 2013); Witherspoon v. State, 40 So.3d 810 (Fla. 3d DCA 2010); Smith v. State, 886 So.2d 336 (Fla. 5th DCA 2004); Byrd v. State, 841 So.2d 502 (Fla. 3d DCA 2003). SILBERMAN, BLACK, and SLEET, JJ., Concur.

  9. Taylor v. State

    157 So. 3d 507 (Fla. Dist. Ct. App. 2015)

    We affirm the trial court's denial of the motion to correct illegal sentence as it concerns the imposition of consecutive standard sentences. Smith v. State, 886 So.2d 336, 337–38 (Fla. 5th DCA 2004). Our ruling is without prejudice for the Appellant to raise his double jeopardy argument in a timely-filed Rule 3.850 motion. SAWAYA, WALLIS, and LAMBERT, JJ., concur.

  10. Black v. State

    52 So. 3d 830 (Fla. Dist. Ct. App. 2011)   Cited 6 times

    With respect to appellant's double jeopardy claim, a claim that a judgment of conviction was entered in violation of double jeopardy protections cannot be raised in a rule 3.800(a) motion because the challenge is to the conviction and not to the sentence. Henry v. State, 920 So.2d 1204, 1205 (Fla. 4th DCA 2006); Safrany v. State, 895 So.2d 1145, 1147 (Fla. 2d DCA 2005); Smith v. State, 886 So.2d 336, 337-38 (Fla. 5th DCA 2004). Affirmed.