Summary
In Fountain v. State, 626 So.2d 1119 (Fla. 4th DCA 1993), we held that a failure to comply with Ashley may be raised in a rule 3.850 motion.
Summary of this case from Pitts v. StateOpinion
No. 92-3420.
December 1, 1993.
Appeal of order denying rule 3.850 motion from the Circuit Court for Indian River County; Joe Wild, Judge.
Robert E. Stone of Sullivan, Stone, Sullivan, LaJoie Thacker, Fort Pierce, for appellant.
Robert A. Butterworth, Atty. Gen., Tallahassee, and Carol Cobourn Asbury, Asst. Atty. Gen., West Palm Beach, for appellee.
Appellant challenges an order denying her motion for post-conviction relief in which she claimed that her sentence was unlawful because she did not receive notice of the state's intent to habitualize prior to her change of plea. We reverse and remand for the trial court to conduct a hearing as to whether the dual requirements of Ashley v. State, 614 So.2d 486 (Fla. 1993), were complied with prior to appellant's change of plea. If they were not, then appellant's habitual offender sentence is illegal and appellant must be sentenced within the guidelines.
WARNER, FARMER and PARIENTE, JJ., concur.