Edwardo De Juan v. State of Florida , 249 So. 3d 681 ( 2018 )

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D18-0105
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EDWARDO DE JUAN,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
_____________________________
On appeal from the Circuit Court for Taylor County.
Gregory S. Parker, Judge.
April 30, 2018
PER CURIAM.
Following a jury trial in 2011, Appellant was convicted of
escape and sentenced to fifteen years in prison. In May 2017,
Appellant filed a motion in the trial court pursuant to rule
3.800(a), Florida Rules of Criminal Procedure, seeking to correct
what Appellant claimed was an illegal sentence. In his motion,
Appellant contended that the elements of escape were not met
because he only went onto the roof of Taylor Correctional
Institution while he was in custody and did not actually leave the
prison. See § 944.40, Fla. Stat. (2010) (providing the elements of
escape and establishing the crime as a second degree felony).
Appellant therefore argued that he was at worst guilty of
attempted escape. The trial court dismissed the motion and
Appellant brought this appeal.
Rule 3.800 is “not the correct procedural vehicle for attacking
the merits of an underlying criminal conviction.” Echeverria v.
State, 949 So. 2d 331, 335 (Fla. 1st DCA 2007). A challenge to
the sufficiency of the evidence cannot be raised in any kind of
collateral postconviction motion. See Smith v. State, 41 So. 3d
1037, 1040 (Fla. 1st DCA 2010) (“[C]laims of insufficient evidence
have long been held to be procedurally barred in collateral
proceedings.”). The trial court was therefore correct to dismiss
the rule 3.800(a) motion.
Furthermore, even if Appellant was correct and he was
guilty of only attempted escape, an attempt to escape from lawful
confinement satisfies that element of the crime of escape. See
Keel v. State, 438 So. 2d 850 (Fla. 1st DCA 1983); Fla. Std. Jury
Instr. (Crim.) 27.1. Escape, whether attempted or completed, is a
second degree felony under section 944.40, punishable by up to
fifteen years in prison pursuant to section 775.082(3)(c), Florida
Statutes (2010). Appellant’s fifteen year sentence was lawful.
AFFIRMED.
B.L. THOMAS, C.J., and BILBREY and JAY, JJ., concur.
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Not final until disposition of any timely and
authorized motion under Fla. R. App. P. 9.330 or
9.331.
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Edwardo De Juan, pro se, Appellant.
Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
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