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Morris v. State8/19/2005
Morris appeals from his judgment and sentences for sexual battery with a deadly weapon or physical force and burglary of a dwelling with an assault or battery entered pursuant to his no contest pleas. On appeal, Morris raises three issues: 1) the trial court erred by denying his motion to withdraw his pleas based on defense counsel's failure to advise him the burglary charge was barred by the statute of limitations, 2) his conviction for burglary must be vacated because it is barred by the statute of limitations, and 3) the condition of probation requiring him to submit biological specimens for DNA testing is unconstitutional.
We conclude Morris failed to preserve the issue regarding the statute of limitations and his counsel's alleged ineffectiveness regarding this issue must be presented in a motion for post-conviction relief. We reject Morris' argument that the DNA testing requirement violates his constitutional right to be free from unreasonable searches and seizures and conclude that his other constitutional challenges to this probation condition have not been preserved for review. Accordingly, we affirm Morris' judgment and sentences without prejudice to his right to seek post-conviction relief with respect to his claim of ineffective assistance of counsel.
The record in this case establishes that Morris was charged by information in August 2003 with two counts of sexual battery, burglary of a dwelling with an assault or battery, aggravated battery causing great bodily harm, and false imprisonment. The state filed notices seeking to have Morris sentenced as an habitual violent offender, habitual violent felony offender and prison releasee reoffender.
According to the state, Morris broke into the home of the victim on October 14, 1998, and brutally beat and raped her. The victim was unable to identify her assailant from photo line-ups and pictures of possible suspects. A composite drawing of the assailant was distributed with no results. Due to a lack of investigative leads, the case was inactivated in 1999. It was not until 2003 that new DNA testing methods produced a match to Morris.
Defense counsel moved to dismiss the aggravated battery and false imprisonment charges filed against Morris on the ground the prosecution of those charges was beyond the applicable three-year statute of limitations. At the hearing on this motion, defense counsel argued the statute of limitations had clearly expired on the aggravated battery and false imprisonment charges. However, defense counsel did not argue any of the other offenses were barred by the statute of limitations.
The trial judge granted the motion and dismissed the aggravated battery and false imprisonment charges. The parties discussed plea offers (Morris wanted 5 years in prison but the state was offering 30 years) and did not reach an agreement.
On the day of trial, defense counsel told the judge that Morris would not accept the state's 30 year plea offer. The prosecutor told Morris if he went to trial and was found guilty, he could get two consecutive life sentences for sexual battery and burglary, a first degree felony punishably by life. Morris then asked whether he could be convicted of a life felony "under habitual status." The prosecutor told Morris the burglary was already punishable by life but with habitual felony offender sentencing, the burglary becomes a life felony. After discussing the matter with defense counsel, Morris declined the plea offer.
A short time later, the prosecutor made a new plea offer. Morris accepted the offer and agreed to enter no contest pleas to one count of sexual battery and the burglary. The state nol prossed the other sexual batte
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