Stacey v. State

¶1Stacey appeals from an order summarily denying his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. We reverse and remand for an evidentiary hearing.

¶2The motion alleged the sentencing court retained jurisdiction over the first one-third of Stacey’s 99-year sentence for armed robbery although the crime was committed before the effective date of Section 947.-16(3), Florida Statutes (Supp.1978), the law allowing retention of jurisdiction. ■ The motion also alleged ineffective assistance of trial counsel.

¶3The trial court found the allegation regarding retention of jurisdiction unreviewa-ble because (1) Stacey did not object to retention at sentencing, and (2) the issue was not raised on direct appeal. 421 So.2d 824. The trial court found the allegations regarding ineffective assistance of counsel conclusively refuted by the record and, even if true, not legally sufficient to allege ineffective assistance of counsel.

¶4The motion alleges the crime for which Stacey was convicted occurred on 8 May 1978. Section 947.16(3) took effect on 19 June 1978. Thus, if this allegation is true, the sentencing court erred. State v. Williams, 397 So.2d 663 (Fla.1981).

¶5Stacey’s failure to object to retention of jurisdiction at sentencing does not preclude review by way of a Rule 3.850 motion. Cofield v. State, 453 So.2d 409 (Fla. 1st DCA 1984). Nor does his failure to raise the issue on direct appeal preclude review by way of a Rule 3.850 motion because, under Cofieldand Fredricks v. State, 440 So.2d 433 (Fla. 1st DCA 1983), he was precluded from raising the issue on direct appeal absent objection at sentencing.1

¶6We agree with the trial court as to Stacey’s other allegations regarding ineffective assistance of counsel.

¶7Reversed and remanded for an evidentia-ry hearing on the retention of jurisdiction issue.