GERALD R. SUGGS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court reversed in part the trial court's summary denial of a postconviction motion where the written sentence conflicted with the oral pronouncement, requiring the trial court to either provide record evidence refuting the allegation or hold an evidentiary hearing.
A trial court must either summarily deny a postconviction motion with record evidence conclusively showing no entitlement to relief or hold an evidentiary hearing when the written sentence conflicts with the oral pronouncement.
[1] A trial court must provide record evidence conclusively refuting a postconviction claim of sentence discrepancy or conduct an evidentiary hearing rather than summarily de…
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Join FLexlaw to unlock all legal intelligenceAppellant Suggs received an oral sentence of ten years but his written sentence stated not less than ten nor more than fifteen years, creating a discr…
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OTT, Acting Chief Judge.
This appeal is from the summary denial of a motion seeking postconviction relief under Florida Rule of Criminal Procedure 3.850. Appellant raised two points in the motion. The allegation in paragraph one is that his written sentence of not less than ten nor more than fifteen years does not conform to the court’s oral pronouncement of ten years. This allegation, if true, might entitle appellant to relief. The trial court denied appellant’s motion without conducting an evidentiary hearing. Attached to the trial court’s order was a prior order amending appellant’s sentence to read fifteen years. This does not refute appellant’s allegation that he was orally sentenced to ten years.
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 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). To attain further review, any aggrieved party must appeal the new ruling of the trial court.
The trial court was correct in denying appellant’s motion as to the other point raised.
AFFIRMED IN PART, REVERSED IN PART, and REMANDED.
CAMPBELL and SCHOONOVER, JJ., concur.
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Jones v. State, 421 So. 2d 55 (Fla. 1st DCA 1982)