District Court of Appeal of Florida, First District.
Darlene Elizabeth Green, pro se.
No appearance for appellee.
PER CURIAM.
Darlene Elizabeth Green has appealed an order of the trial court summarily denying her motion for post-conviction relief, pursuant to Rule 3.850, Florida Rules of Criminal Procedure. We affirm.
In September 1991, Green pled guilty to and was convicted of the sale and delivery of cocaine, and was sentenced to 8 years as an habitual offender. Green filed the instant motion in January 1992, alleging that: 1) her sentence was outside the guidelines, 2) the trial court sentenced her as an habitual offender without considering a PSI as required by section 775.084(3)(a), and 3) trial counsel was ineffective for failing to appeal despite a request that he do so. The trial judge summarily denied the motion without explanation or attachments. Because the order did not inform Green that she had 30 days in which to appeal, this court granted a belated appeal in December 1992.
The first ground alleged is without merit, in that habitual offender sentences are not subject to the guidelines. ยง 775.084(4)(e), Fla. Stat. As to the second ground, Green alleges an insufficient factual basis therefor, i.e., "no pre-sentence is in defendant's records." This is not conclusive, in that such records are often sealed after consideration. With regard to the allegation that trial counsel failed to file an appeal despite Green's request, Green does not allege that the request was timely. Therefore, the motion was properly denied as to this ground as well. See Jackson v. State, 599 So. 2d 266 (Fla.1st DCA 1992).
The order of the trial court is affirmed.
JOANOS, C.J., and MINER and ALLEN, JJ., concur.
