473 So. 2d 11 | Fla. Dist. Ct. App. | 1985
This appeal is from a summary denial of appellant’s motion to vacate, filed pursuant to Rule 3.850, Florida Rules of Criminal Procedure. The appellant was found guilty by a jury of robbery with a deadly weapon and aggravated assault. He was sentenced to ninety years and fifteen years respectively to run consecutively with the trial court retaining jurisdiction over one-third of each of the sentences. Appeal from the final judgment of convictions and sentences resulted in affirmance. Post conviction motions alleging ineffectiveness of appellate counsel were denied. By this further petition the defendant challenges (1) the sufficiency of the evidence to sustain the conviction; (2) propriety of the retention of jurisdiction over both consecutive sentences; and (3) the judgment and sentence for robbery with a deadly weapon was excessive where there was no proof a deadly weapon was used in commission of the crime.
Points 1 and 3 could have been raised on direct appeal and therefore the defendant is not entitled to relief. See Palmes v. State, 425 So.2d 4 (Fla.1983); Thompson v. State, 410 So.2d 500 (Fla.1982). Point 2 also could have been raised on direct appeal and should not entitle the defendant to relief. However, because the improper retention of jurisdiction is a part of the sentence it should be stricken. In so doing it will not be necessary to vacate the judgment and sentences. See Adams v. State, 435 So.2d 953 (Fla. 2d DCA 1983). This matter is returned to the trial court for further proceedings.