Third District Court of Appeal
State of Florida
Opinion filed April 12, 2023.
Not final until disposition of timely filed motion for rehearing.
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No. 3D23-492
Lower Tribunal No. F94-38169B
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Torin Robinson,
Petitioner,
vs.
The State of Florida, et al.,
Respondents.
A Case of Original Jurisdiction – Habeas Corpus.
Torin Robinson, in proper person.
Ashley Moody, Attorney General, for respondent The State of Florida.
Before EMAS, LOGUE and LINDSEY, JJ.
EMAS, J.
Torin Robinson filed an original petition for writ of habeas corpus on
March 21, 2023, asserting claims of ineffective assistance of appellate
counsel with regard to his judgment and sentence in circuit court case
number 94-38169B, which became final, on direct review, on March 21,
1997. Robinson was required to file this petition within four years, or no later
than March 21, 2001. See Fla. R. App. P. 9.141(d)(5) (“In no case shall a
petition alleging ineffective assistance of appellate counsel on direct review
be filed more than 4 years after the judgment and sentence become final on
direct review”). We therefore deny his petition as time-barred by more than
twenty years.
We further note that, although Robinson may be correct that his dual
convictions for armed robbery with a firearm and unlawful possession of the
same firearm during the commission of that armed robbery violate double
jeopardy, see Cleveland v. State,
587 So. 2d 1145 (Fla. 1991); Williams v.
State,
109 So. 3d 831 (Fla. 3d DCA 2013) (and cases collected), the trial
court suspended the entry of any sentence on the latter charge, and thus no
sentence was actually imposed for unlawful possession of a firearm during
the commission of a felony. Because no sentence was imposed on that
count, there is no cognizable claim for relief under Florida Rule of Criminal
Procedure 3.800(a). See Ramirez v. State, 47 Fla. L. Weekly D1823 (Fla.
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3d DCA Aug. 31, 2022) (“A motion to correct illegal sentence under rule
3.800(a) is not cognizable where, as here, the defendant seeks to challenge
the validity of the conviction and, only by extension, the ‘legality’ of the
resulting sentence”). See also Morgan v. State,
888 So. 2d 128, 129 (Fla. 3d
DCA 2004) (acknowledging “a motion to correct illegal sentence is an
appropriate procedure for challenging a sentence, but not a conviction”);
Coughlin v. State,
932 So. 2d 1224, 1225 (Fla. 2d DCA 2006) (holding “a
traditional double jeopardy challenge attacks both the conviction and, by
default, the sentence, while rule 3.800(a) is limited to claims that the
sentence itself is illegal, without regard to the underlying conviction”).
Petition denied.
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