THOMAS GERALD SCHOMERS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred in summarily denying one of the issues raised in the defendant's motion for postconviction relief, requiring further proceedings.
The defendant pleaded guilty and received a prison sentence for one count and probation for two others. He claims his plea was only for the first coun…
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PER CURIAM.
Thomas Schomers appeals the summary denial of his motion for postconviction relief. We affirm in part and reverse in part.
The first of the two issues raised by Schomers’s motion is without merit, and the trial court properly denied relief on that ground. However, we find the second issue facially sufficient. Schomers was charged in a three-count information with conspiracy to traffic in cocaine, delivery of cocaine, and possession of cocaine. Upon a plea of guilty he received a prison sentence for count one, to be followed by probation for counts two and three. Now he claims that the plea was entered to count one of the information only, and thus no penalty, probation or otherwise, should have been imposed for the two remaining charges. The trial court, denying Schomers’s motion, failed to attach sufficient evidence from the record to refute this claim. Accordingly, we must reverse for further proceedings pursuant to rule 3.850, Florida Rules of Criminal Procedure.
After remand the trial court should determine the exact nature of the plea agreement and, if Schomers’s version is correct, should vacate the two terms of probation. If the court again denies the motion, it should confirm that Schomers’s plea was entered to all three counts of the information, or that the split sentence was within the scope of the plea and was imposed solely with respect to count one. Any party aggrieved by the subsequent action of the trial court must file a notice of appeal within thirty days to obtain further appellate review.
Affirmed in part, reversed in part, and remanded with instructions.
DANAHY, A.C.J., and HALL and THREADGILL, JJ., concur.
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Dailey v. State, 575 So. 2d 237 (Fla. 2d DCA 1991)…e. Dailey’s original sentence, however, was incomplete. Therefore, on remand the trial court shall comply with section 775.089(l)(a) which, since 1984, has required that the court order restitution unless reasons exist not to do so. Grice v. State, 528 So. 2d 1347 (Fla. 1st DCA 1988) (sentence not including restitution or reasons for failing to impose it is incomplete and may be modified by the trial court). See also Gilmore v. State, 479 So. 2d 791, 792 (Fla. 2d DCA 1985). Dailey has begun to serve his sente…
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State v. MacLEOD, 600 So. 2d 1096 (Fla. 1992)…estitution as "incomplete” but not "illegal”); State v. Butz, 568 So. 2d 537 (Fla. 4th DCA 1990) (trial judge’s order failing to include restitution, without stating its reasons for not doing so, does not result in illegal sentence); Grice v. State, 528 So. 2d 1347 (Fla. 1st DCA 1988) (failure to order restitution results in "incomplete” sentence).…
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State v. Butz, 568 So. 2d 537 (Fla. 4th DCA 1990)…e correctible at any time, or merely incomplete, which would be correctible only within the sixty-day window. We agree with our sister court’s characterization of this type of sentence as incomplete and subject to modification. See Grice v. State, 528 So. 2d 1347, 1350 (Fla. 1st DCA 1988). We also agree that any “modification” through the addition of restitution costs is not sentence enhancement. Id. at 1350. Given the facts of this case, we cannot say that failure to include restitution resulted in an illeg…
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