Jay Arthur Kelly v. State of Florida

FIRST DISTRICT COURT OF APPEAL
STATE OF FLORIDA
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No. 1D18-1438
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JAY ARTHUR KELLY,
Appellant,
v.
STATE OF FLORIDA,
Appellee.
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On appeal from the Circuit Court for Clay County.
Michael S. Sharrit, Judge.
October 21, 2019
RAY, C.J.
Jay Arthur Kelly appeals from an order summarily denying
his motion for postconviction relief filed pursuant to Florida Rule
of Criminal Procedure 3.850. We affirm.
Kelly pled guilty to one count of failing to comply with sexual
offender registration requirements, a violation of section 943.0435,
Florida Statutes (2016), in exchange for a sentence of thirty-six
months in prison. This court affirmed his conviction and sentence
without written opinion. Kelly v. State, 231 So. 3d 410 (Fla. 1st
DCA 2017) (Table). In his sole ground for postconviction relief,
Kelly alleges that his conviction should be vacated because he does
not qualify as a sexual offender. Specifically, he argues that he
should have been released for his qualifying offense prior to
October 1, 1997, the effective date of the relevant statute. See
943.0435(1)(h)1., Fla. Stat. (providing that a sexual offender is
someone with a qualifying prior conviction who has “been released
on or after October 1, 1997, from the sanction imposed for [the
qualifying offense]”). The postconviction court denied the motion,
correctly noting that Kelly had unsuccessfully raised this issue
twice before—first in a motion to dismiss below and later on direct
appeal.
Kelly’s motion was properly denied as his claim is not
cognizable in a rule 3.850 motion. See Fla. R. Crim. P. 3.850(c)
(“This rule does not authorize relief based upon grounds that could
have or should have been raised at trial and, if properly preserved,
on direct appeal of the judgment and sentence.”); Johnson v. State,
985 So. 2d 1215, 1215 (Fla. 1st DCA 2008) (“[P]rosecutorial
misconduct, insufficiency of the evidence ..., and trial court error,
are not cognizable in a collateral postconviction motion.”).
AFFIRMED.
B.L. THOMAS and WINOKUR, 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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Jay Arthur Kelly, pro se, Appellant.
Ashley Moody, Attorney General, Tallahassee, for Appellee.
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