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563 So. 2d 707

Docket No. 89-1951.

Ferenc v. State

John Michael FERENC, Appellant, v. STATE of Florida, Appellee.

District Court of Appeal of Florida

Decided April 12, 1990.

Rehearing Denied July 30, 1990.

District Court of Appeal of Florida · decided 1990-04-12

Key passage — most relied on by later courts

“[A] double jeopardy argument constitutes a challenge of a conviction, rather than a sentence.”

quoted by 2 later decisions, including Spencer v. State, 564 So. 2d 519 - Kurtz v. State

Relies on 515 So. 2d 161 - Carawan v. State · 515 So. 2d 748 - Shull v. Dugger · 558 So. 2d 4 - State v. Glenn

Good law ✅— No negative treatment on recordhow we know

Decided 1990-04-12

How this case has been cited

Cited by 18 later decisions — most recently April 2014

17 state decisions

90199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1John Michael Ferenc, pro se.

¶2No Appearance for appellee.

¶3SHIVERS, Chief Judge.

¶4Appellant, John Michael Ferenc, appeals the trial court's summary denial of his motion for correction, reduction, or modification of sentence. We affirm for the reasons set out below.

¶5The record on appeal indicates that appellant was convicted in August 1983 of attempted armed burglary, carrying a concealed firearm, and possession of burglary tools, all alleged to have occurred during an attempt to burglarize a house in Pensacola on March 2, 1983. Appellant was then sentenced to consecutive terms of 15, 5, and 5 years. His conviction on all three counts was affirmed by this court in Ferenc v. State,455 So.2d 432 (Fla. 1st DCA 1984). In November 1986, appellant filed a motion for post-conviction relief pursuant to Rule 3.850, Fla.R.Crim.P., raising five grounds. The trial court summarily denied the petition, and this court affirmed the denial in Ferenc v. State,515 So.2d 751 (Fla. 1st DCA 1987).

¶6In February 1989, appellant filed the instant motion for correction, reduction, or modification of sentence, pursuant to Rule 3.800, Fla.R.Crim.P., alleging that his conviction and sentence for all three offenses violated the prohibition against double jeopardy, and asking the trial court to correct his illegal sentence by reducing it from 25 to 15 years for the attempted armed burglary count only. The trial court summarily denied this motion as well, without stating its reason for so doing.

¶7Although double jeopardy arguments are frequently raised as challenges to both conviction and sentence, the crux of such an argument is that the defendant should not have been convicted of multiple offenses arising out of a single incident. See Carawan v. State,515 So.2d 161 (Fla. 1987). Therefore, a double jeopardy argument constitutes a challenge of a conviction, rather than a sentence. Since Rule 3.800 *708 provides only an avenue for correcting, modifying, or reducing a sentence, appellant's post-conviction challenge to his conviction would have had to be raised via Rule 3.850, which allows a defendant to attack either sentence or conviction.

¶8As appellant's conviction was affirmed by this court in 1984, a Rule 3.850 motion for post-conviction relief raising the double jeopardy issue would now be untimely. See Rule 3.850, providing that a defendant whose judgment and sentence become final prior to January 1, 1985 has until January 1, 1987 to file a motion for post-conviction relief. In any event, the supreme court has recently held that the holding in Carawan v. State constituted an evolutionary refinement of decisional law rather than a fundamental change in law and, as such, may not be given retroactive application under Rule 3.850. State v. Glenn,558 So.2d 4 (Fla. 1990).

¶9Accordingly, the trial court's summary denial of appellant's motion for correction, reduction, or modification of sentence is hereby AFFIRMED.

¶10ERVIN and NIMMONS, JJ., concur.

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