JAY D. DIAMOND, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court reversed in part the trial court's summary denial of a Rule 3.850 motion because the court failed to address or refute an allegation that the appellant was sentenced to twenty years for unarmed robbery, which exceeds the fifteen-year statutory maximum.
When a defendant alleges in a Rule 3.850 motion that the sentence imposed exceeds the statutory maximum, the trial court must either conduct an evidentiary hearing or attach record portions conclusively refuting the allegation rather than summarily denying the motion.
[1] When a defendant alleges in a Rule 3.850 motion that the imposed sentence exceeds the statutory maximum, the trial court must either conduct an evidentiary hearing or att…
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Join FLexlaw to unlock all legal intelligenceAppellant Diamond was sentenced to twenty years for unarmed robbery, a second degree felony, and filed a Rule 3.850 motion for postconviction relief a…
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OTT, Chief Judge.
This appeal is from the summary denial of a motion seeking postconvietion relief under Florida Rule of Criminal Procedure 3.850. Appellant raised several points in the motion. The allegation in paragraph 8 that appellant was sentenced to twenty years for unarmed robbery, a second degree felony, if true, would entitle appellant to relief in that the maximum sentence authorized by law is fifteen years. §§ 812.13 and 775.082(3)(c), Fla.Stat. (1981). The trial court, however, failed to either conduct an evidentiary hearing or attach portions of the record which refute that allegation.
Accordingly, we reverse in part the trial court’s denial of appellant’s motion and remand the case to the trial court. On remand, the trial court may either again summarily deny the motion as to the allegation specified, and attach to its order those portions of the record which conclusively show appellant is not entitled to relief or hold an evidentiary hearing and then rule on the ground alleged in the above portion of the motion. See Fla.R.Crim.P. 3.850. See also Jones v. State, 421 So. 2d 55 (Fla. 1st DCA 1982) and Van Bever v. State, 405 So. 2d 474 (Fla. 5th DCA 1981). To obtain further review, any aggrieved party must appeal the new ruling of the trial court.
The trial judge was correct in denying the appellant’s motion as to the other points raised therein.
AFFIRMED IN PART, REVERSED IN PART, and REMANDED with instructions.
SCHEB and LEHAN, JJ., concur.
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Citator
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Diamond v. State, 440 So. 2d 627 (Fla. 2d DCA 1983)…[*628] PER CURIAM. This court previously remanded appellant’s motion for postconviction relief under Florida Rule of Criminal Procedure 3.850 to the trial court for further consideration. See Diamond v. State, 431 So. 2d 348 (Fla. 2d DCA 1983). The trial court has now attached to its order denying postconviction relief those portions of the record which conclusively show that appellant was charged with and pled guilty to robbery with a deadly weapon. Consequently, appel…
Authorities Cited
- Jones v. State, 421 So. 2d 55 (Fla. 1st DCA 1982)
- VAN Bever v. State, 405 So. 2d 474 (Fla. 5th DCA 1981)