Witt v. State

973 So.2d 619 (2008)

Gregory WITT, Appellant,
v.
The STATE of Florida, Appellee.

No. 3D07-2936.

District Court of Appeal of Florida, Third District.

January 23, 2008. Rehearing Denied February 21, 2008.

Gregory Witt, in proper person.

Bill McCollum, Attorney General, for appellee.

Before COPE and GREEN, JJ., and SCHWARTZ, Senior Judge.

PER CURIAM.

This is an appeal from an order denying without a hearing the defendant's Rule 3.800 motion to correct his sentence by vacating the designation and sentence as a habitual violent felony offender pursuant to section 775.084(4)(b), Florida Statutes (1995):

THIS CAUSE having come on to be heard upon the Motion to Correct Illegal Sentence, which was filed in the Office of the Clerk at the Circuit Court on August 17, 2007, and the Court having considered same, together with the response filed by the State, denies the defendant's motion without further hearing on the following grounds:

The defendant states in his motion that he was arrested on the instant case on December 14th, 1995. In support of his motion the defendant cites Johnson v. State, 765 So.2d 914 (Fla. 2d DCA 2000). A reading of Johnson shows that the defendant is not entitled to relief. In his motion, the defendant states that he was released on conditional release on June 13th, 1994. Thus, the defendant was in actual custody of the Florida Department of Corrections through June 12, 1994. This is well within the five-year time limit that would permit the defendant to be sentenced as a habitual violent offender.

. . . .

Thus, by the defendant's Own recitation of facts in his motion he has demonstrated that he is not entitled to relief.

We agree.

Affirmed.