MICHAEL LENARD TODD, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The trial court erred in summarily denying a motion to correct an illegal sentence without attaching record evidence supporting the imposition of a mandatory minimum sentence for firearm possession.
Michael Todd moved to correct an illegal sentence, alleging he did not personally possess a firearm during an attempted robbery, and thus the mandator…
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PER CURIAM.
Michael Lenard Todd claims that the trial court erred by denying his motion to correct an illegal sentence pursuant to Rule 3.800(a), Florida Rules of Criminal Procedure. In support of the motion he alleged that the sentencing court imposed a three year mandatory minimum for carrying a firearm during the attempted robbery, but that it was not he, but his co-defendant, who possessed the firearm.
If Todd’s assertion, that he did not personally possess a firearm during the commission of the crime, is correct, the minimum mandatory term should not have been imposed. See Earnest v. State, 351 So. 2d 957 (Fla.1977).
The trial court attached only a copy of Todd’s plea in support of Todd’s denial. The court also should have attached a copy of some portion of the original record indicating that Todd’s allegation was erroneous. See Poiteer v. State, 627 So. 2d 526, (Fla. 2d DCA 1993) (where defendant alleged in 3.800 motion that there was no showing that he was in actual possession of a firearm and defendant sufficiently alleged prejudice, trial court erred in summarily denying relief without reaching merits of the motion); Bell v. State, 589 So. 2d 1374 (Fla. 1st DCA 1991) (defendant, by pleading guilty to robbery with a firearm, did not admit to personally carrying a firearm during the robbery and thus trial court was required at plea hearing to determine whether there was factual basis for minimum mandatory sentence). Contra Young v. State, 616 So. 2d 1133 (Fla. 3d DCA 1993) (sentence with mandatory minimum not illegal where no factual basis given showing actual possession of firearm; issue must be raised in 3.850 motion).
We vacate the order denying the motion and remand for the trial court to delete the minimum mandatory or attach to its order portions of the record demonstrating a factual basis for the plea to the minimum mandatory.
ORDER VACATED; REMANDED.
PETERSON, C.J., and DAUKSCH and W. SHARP, JJ., concur.
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State v. Mancino, 705 So. 2d 1379 (Fla. 1998)…t Mancino’s motion had been properly filed under rule 3.800(a). See, e.g., Butchek v. State, 686 So. 2d 21 (Fla. 2d DCA 1996); Word v. State, 682 So. 2d 642 (Fla. 2d DCA 1996); Brown v. State, 633 So. 2d 112 (Fla. 2d DCA 1994); accord Todd v. State, 659 So. 2d 1350 (Fla. 5th DCA 1996). The district court of appeal remanded with directions that the trial court determine whether Mancino had manually possessed a firearm during the burglary. The court further stated that if the trial court could make this determin…
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Mancino v. State, 689 So. 2d 1235 (Fla. 2d DCA 1997)…to an inadequate factual basis to support imposition of three-year minimum mandatory under section 775.087(2) must be brought by motion under rule 3.850 and not rule 3.800(a)). Another district, however, agrees with our approach. See Todd v. State, 659 So. 2d 1350 (Fla. 5th DCA 1995) (citing Poiteer in support of vacating trial court’s denial of rule 3.800(a) motion alleging no factual basis to support imposition of three-year minimum mandatory and remanding for trial court either to delete minimum mandatory…
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Orestes Fraga v. State, 695 So. 2d 743 (Fla. 4th DCA 1996)…So. 2d 1133 (Fla. 3d DCA 1993). Accordingly, while we deny the petition for rehearing/clarification, we certify conflict with Reyes v. State, 676 So. 2d 31 (Fla. 2d DCA 1996); Butchek v. State, 686 So. 2d 21 (Fla. 2d DCA 1996); and Todd v. State, 659 So. 2d 1350 (Fla. 5th DCA 1995). GUNTHER, C.J., and GLICKSTEIN and WARNER, JJ., concur.…
Authorities Cited
- Earnest v. State, 351 So. 2d 957 (Fla. 1977)
- Poiteer v. State, 627 So. 2d 526 (Fla. 2d DCA 1993)
- Bell v. State, 589 So. 2d 1374 (Fla. 1st DCA 1991)
- Young v. State, 616 So. 2d 1133 (Fla. 3d DCA 1993)