RONALD DAVIS SMALL, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that a trial court must refute a defendant's claim of sentencing error by attaching record portions if summarily denying a motion to correct an illegal sentence.
The appellant claimed he was sentenced to life imprisonment for simple robbery, which has a lower statutory maximum, despite the indictment charging a…
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NIMMONS, Judge.
Small appeals the summary denial of his motion to correct an illegal sentence, filed pursuant to Fla.R.Crim.P. 3.800(a), alleging that he was sentenced in excess of the statutory maximum.
He claims he was convicted of “simple” robbery which carries a term of only 15 years but was nevertheless sentenced to life imprisonment. Although the copy of the indictment attached to Small’s motion charges the offense of armed robbery (with firearm), the judgment and sentence, copy of which is also attached to Small’s motion, states that Small was convicted by jury of “robbery,” there being no indication that it was an armed robbery.
The order denying the motion recites that the trial court had reviewed the file in appellant’s case, but the order fails to refute, either by attachment of portions of the record or otherwise, the appellant’s claim.
Accordingly, we reverse and remand for further proceedings. If the trial court again summarily denies appellant’s motion, it should attach portions of the record which refute his allegation.
REVERSED and REMANDED.
SMITH, C.J., and MILLS, J., concur.
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Pledge Williams v. State, 717 So. 2d 619 (Fla. 3d DCA 1998)…ew. We do, however, conclude that the prior offense which formed the basis of the defendant’s sentencing as a habitual violent felony offender did not qualify for that purpose under section 775.084(1)(b), Florida Statutes (1997). See Small v. State, 535 So. 2d 622 (Fla. 1st DCA 1988). Accordingly, the habitual violent felony offender sentence is vacated and the cause remanded for appropriate resentenc-ing.…
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Small v. State, 556 So. 2d 780 (Fla. 1st DCA 1990)…3.800 motion was before us earlier on appeal from another order of summary denial. We reversed and remanded inasmuch as the order failed “to refute, either by attachment of portions of the record or otherwise, the appellant’s claim.” Small v. State, 535 So. 2d 622 (Fla. 1st DCA 1988). In addition to the judgment and sentence and the indictment, we now have as attachments to the order presently under review the above referred verdict and clerk’s trial memorandum. These documents are sufficient to refute Small’…
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Wayland Lee Webb v. State, 642 So. 2d 782 (Fla. 1st DCA 1994)…a facially sufficient motion to correct illegal sentence. Fann v. State, No. 93-3039, 1994 WL 201455 (Fla. 1st DCA May 25, 1994); Thomas v. State, 634 So. 2d 175 (Fla. 1st DCA 1994); Jones v. State, 635 So. 2d 41 (Fla. 1st DCA 1994); Small v. State, 535 So. 2d 622 (Fla. 1st DCA 1988); see also Haggerty v. State, 632 So. 2d 668 (Fla. 4th DCA 1994); Bunch v. State, 622 So. 2d 525 (Fla. 5th DCA 1993); Young v. State, 619 So. 2d 378 (Fla. 2d DCA 1993). Accordingly, the order denying appellant’s rule 3.800(a) mo…
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