CHRISTOPHER SUMMERS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Christopher Summers appealed the denial of his motion to correct an illegal sentence under Florida Rule of Criminal Procedure 3.800, claiming he was illegally resentenced to an enhanced sentence after his original sentence had been upheld on appeal. The appellate court reversed because the trial court failed to attach portions of the record conclusively showing that Summers was not entitled to relief.
The appellate court reversed the denial of Summers' motion to correct illegal sentence because the trial court failed to attach portions of the file and records necessary to conclusively refute Summers' allegations regarding the resentencing and habitual offender sentencing issues.
[1] A trial court must attach portions of the file and records that conclusively show a defendant is not entitled to relief when denying a motion to correct an illegal senten…
[2] A trial court may be without jurisdiction to resentence a defendant post-appeal if the original sentence was upheld.
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Join FLexlaw to unlock all legal intelligence“We reverse because the trial court did not attach portions of the file and records conclusively showing that he is not entitled to relief.”
Establishes the core holding that the trial court's denial was procedurally deficient due to failure to attach supporting record materials.
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Join FLexlaw to unlock all legal intelligenceSummers was convicted of grand theft in case No. 91-8844 and sentenced to two-and-a-half years. On direct appeal, this conviction and sentence were up…
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PER CURIAM.
Christopher Summers appeals the denial of his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800. We reverse because the trial court did not attach portions of the file and records conclusively showing that he is not entitled to relief.
The appellant raised two issues in his motion, neither of which was raised in his direct appeal, Summers v. State, 625 So. 2d 876 (Fla. 2d DCA 1993), certified question answered, 642 So. 2d 742 (Fla.1994). Five cases were challenged in that appeal, including No. 91-8844, which is the subject of this motion. This court upheld the appellant’s conviction for grand theft and his sentence of two-and-a-half years in No. 91-8844. Now, he alleges that he was illegally resentenced, post-appeal, to an enhanced sentence of five-and-a-half years in that case. The trial court was without jurisdiction to resentence, the appellant argues, since the sentence had been upheld on appeal. He also contends that the trial court “set aside” the case in question on the same date as the resentencing, December 6, 1993. We would need to see relevant portions of the record to conclusively refute these assertions. The trial court offered no factual basis or record support, and its order denying the motion is inadequate on that issue.
The second issue raised by the appellant is that the trial court erred when it sentenced him as a habitual offender upon revocation of probation. He seems to be referencing the five-and-a-half-year sentence he lists on his motion’s “statement of the facts,” along with a sentencing date of June 20,1995. He cites Snead v. State, 616 So. 2d 964 (Fla.1993), for the proposition that a court cannot order a habitual offender sentence upon probation revocation following a guilty or nolo plea unless the defendant could have been sentenced initially as a habitual offender, and received proper notice of that possibility. Again, without factual basis or record support, we cannot determine whether the second claim is refuted conclusively.
We must reverse and remand for further proceedings in accord with Watson v. State, 661 So. 2d 72 (Fla. 2d DCA 1995). On remand, if the trial court again summarily denies the motion, it must attach those portions of the record or files which refute these claims.
Reversed and remanded for further proceedings.
CAMPBELL, A.C.J., and FRANK and ALTENBERND, JJ., concur.
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Citator
Cited By
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Shaw v. State, 780 So. 2d 188 (Fla. 2d DCA 2001)…der on that motion. When ruling on a facially sufficient rule 3.800(a) motion, the trial court must justify the denial of the motion with attachments from the record. See Ducharme v. State, 690 So. 2d 1358, 1361 (Fla. 2d DCA 1997); Summers v. State, 670 So. 2d 1105, 1105 (Fla. 2d DCA 1996); Becton v. State, 668 So. 2d 1107, 1108 (Fla. 2d DCA 1996). [*192] As a general rule, the failure to attach portions of the record requires us to reverse on all claims. See Waterfield v. State, 736 So. 2d 735, 736 (Fla. 2d D…
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Ducharme v. State, 690 So. 2d 1358 (Fla. 2d DCA 1997)…ons that it reconsider the appellant’s motion. We remind the trial court that in the event it should again deny relief, it must attach to its order those relevant parts of the record conclusively refuting the appellant’s claim. See Summers v. State, 670 So. 2d 1105 (Fla. 2d DCA 1996). Finally, it should also be obvious from our analysis that the Florida legislature has demonstrated a proclivity to undertake yearly amendments to section 921.0012 since its enactment in 1993 and to apply each of these amendments…
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McPHERSON v. State, 750 So. 2d 125 (Fla. 2d DCA 2000)…ly, we reverse the order denying relief to McPherson and remand to the trial court for further proceedings. If the trial court again denies McPherson relief, it shall attach those portions of the record which refute his claims. See Summers v. State, 670 So. 2d 1105 (Fla. 2d DCA 1996); Becton v. State, 668 So. 2d 1107 (Fla. 2d DCA 1996). Reversed and remanded. FULMER, A.C.J., and WHATLEY and NORTHCUTT, JJ„ Concur.…
Authorities Cited
- Carder v. State, 642 So. 2d 742 (Fla. 1994)
- Snead v. State, 616 So. 2d 964 (Fla. 1993)
- Goosby v. State, 625 So. 2d 876 (Fla. 1st DCA 1993)
- Watson v. State, 661 So. 2d 72 (Fla. 2d DCA 1995)