Brown v. StateBrown v. State
Appellant challenges the denial of his 3.800 motion for correction of illegal sentence. As to the first issue raised, the trial court incorrectly ruled that appellant, whose offenses occurred in February, 1991, was not affected by the “window” period during which the 1989 amendments to
As to the second issue, appellant correctly asserts that consecutive habitual offender sentences cannot be imposed when the offenses arose out of the same criminal episode, see Hale v. State, 630 So.2d 521 (Fla. 1993), cert. denied ___ U.S. ___, 115 S.Ct. 278, 130 L.Ed.2d 195 (1994). The question whether the offenses arose out of the same criminal episode must be raised in a 3.850 motion, see State v. Callaway, 658 So.2d 983 (Fla. 1995). Such a motion must be filed within the two year “window” following the supreme court‘s decision in Hale. Id. Although styled a motion for post-conviction relief under rule 3.800, appellant‘s motion contained sworn factual allegations. “The courts have the authority to treat prisoner petitions as if the proper remedy were sought if it would be in the interest of justice to do so.” Hall v. State, 643 So.2d 635 (Fla. 1st DCA 1994). We believe it would be in the interest of justice to do so in this case. Therefore, on this issue, we remand with directions to treat appellant‘s motion as if filed pursuant to rule 3.850.
As to the third issue, in 1991, when the instant offenses were committed, nonsequential convictions could be used as a basis for habitual offender sentencing, see State v. Barnes, 595 So.2d 22 (Fla. 1992), Waters v. State, 657 So.2d 39 (Fla. 1st DCA 1995), Ford v. State, 652 So.2d 1236 (Fla. 1st DCA 1995).
Affirmed in part, reversed in part and remanded with directions.
BOOTH, JOANOS and BENTON, JJ., concur.