DEWAYNE KEY, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court affirmed the denial of relief in one case due to untimeliness, but reversed and remanded in another case on two issues where the trial court failed to refute the allegations.
Dewayne Key appealed the summary denial of his motion for postconviction relief in two cases. In one case, the motion was untimely. In the second case…
The full statement of facts, procedural history, and disposition for this case are member content.
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[*1041] PARKER, Judge.
Dewayne Key appeals the summary denial of his motion for postconviction relief in two separate cases, lower court file numbers 87-11271 and 87-9763. We affirm the trial court’s order in case number 87-11271 because Key’s motion was untimely filed.
As to the second case, although Key raises numerous issues, we find only two have merit. First, Key alleges he was re-sentenced by the trial court in May 1988, after his notice of direct appeal was filed in April 1988. If that is true, the trial court lacked jurisdiction to resentence Key. See Figone v. Downey, 547 So. 2d 697 (Fla. 2d DCA 1989). The trial court’s order, in addressing this issue, states that Key’s notice of appeal was filed in May 1988. However, the documents Key attached to his motion reflect that this court received documents indicating the filing date for the notice of appeal was April 19, 1988. Therefore, the trial court’s order does not refute Key’s allegation.
Secondly, Key alleges that the trial court’s failure to advise him at the change of plea hearing of the minimum mandatory sentences required to be imposed constituted error. See State v. Wilson, 395 So. 2d 520 (Fla.1981); Brown v. State, 585 So. 2d 350 (Fla. 4th DCA 1991). The plea colloquy which the trial court attached to its order denying Key’s motion does not conclusively refute Key’s claim.
Concerning these two issues only, we remand lower case number 87-9763 to the trial court. The trial court either should hold an evidentiary hearing or attach portions of the record to refute Key’s claims. See Smith v. State, 582 So. 2d 796 (Fla. 5th DCA 1991).
RYDER, A.C.J., and ALTENBERND, J., concur.
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Montrey Mack v. State, 655 So. 2d 1251 (Fla. 2d DCA 1995)…tences, he was facing as a violent habitual felony offender. The trial court’s failure to advise him at the change of plea hearing of the minimum mandatory sentences is ground for relief. See State v. Wilson, 395 So. 2d 520 (Fla.1981); Key v. State, 599 So. 2d 1040 (Fla. 2d DCA 1992). The plea colloquy, which the trial court attached to its order denying Mack’s motion, actually supports Mack’s contention. Accordingly, we reverse the order denying Mack’s motion and remand with directions to the trial court to…
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State v. Freddy Morales, 678 So. 2d 510 (Fla. 3d DCA 1996)…en filed. See Loeb v. State, 387 So. 2d 433, 435 (Fla. 3d DCA 1980); Gorman v. State, 636 So. 2d 203 (Fla. 1st DCA 1994); see also Jordon v. State, 631 So. 2d 362 (Fla. 1st DCA 1994); Bauman v. State, 600 So. 2d 551 (Fla. 2d DCA 1992); Key v. State, 599 So. 2d 1040 (Fla. 2d DCA 1992); Dailey v. [*511] State, 575 So. 2d 287 (Fla. 2d DCA 1991); Hicks v. State, 559 So. 2d 1265 (Fla. 3d DCA 1990); Casseus v. State, 509 So. 2d 965 (Fla. 3d DCA 1987). The Second District has held to the contrary, ruling that a tria…
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Jordon v. State, 631 So. 2d 362 (Fla. 1st DCA 1994)…n from the trial court and eliminated the trial court’s authority to correct appellant’s sentence while the appeal was pending. See Kelly v. State, 359 So. 2d 493 (Fla. 1st DCA 1978); Bauman v. State, 600 So. 2d 551 (Fla. 2d DCA 1992); Key v. State, 599 So. 2d 1040 (Fla. 2d DCA 1992); Dailey v. State, 575 So. 2d 237 (Fla. 2d DCA 1991); Hicks v. State, 559 So. 2d 1265 (Fla. 3d DCA 1990); Wolfson v. State, 437 So. 2d 174 (Fla. 2d DCA 1983). Appellee relies on State v. Burton, 314 So. 2d 136 (Fla.1975); Goene v…
Authorities Cited
- State v. Wilson, 395 So. 2d 520 (Fla. 1981)
- Brown v. State, 585 So. 2d 350 (Fla. 4th DCA 1991)
- Smith v. State, 582 So. 2d 796 (Fla. 5th DCA 1991)
- Figone v. Honorable Brandt C. Downey, III, 547 So. 2d 697 (Fla. 2d DCA 1989)