ROBERT GLOVER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Robert Glover, an inmate, sought a belated appeal of his resentencing following a prior appeal that vacated his sentence for attempted first-degree murder. The trial court denied his motion, but the appellate court reversed, finding that the record did not conclusively demonstrate Glover was ineligible for a belated appeal.
The court reversed the trial court's denial of the motion for a belated appeal, holding that the record did not conclusively establish that Glover was ineligible for such relief. The court determined that if the 40-year sentence was not imposed consistent with sentencing guidelines, Glover would have had a valid issue to appeal.
[1] A motion for a belated appeal should be granted when the record attached to the order denying relief does not conclusively show that the movant is not entitled to a belat…
[2] A trial court must attach portions of the record that conclusively show a movant is not entitled to a belated appeal when denying a motion for a belated appeal without a…
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“Because the portions of the record attached to the order do not conclusively show that appellant is not entitled to a belated appeal, we reverse.”
Establishes the standard for reviewing denial of a belated appeal motion—the record must conclusively demonstrate ineligibility.
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceGlover was convicted of attempted first-degree murder with a firearm and robbery with a firearm, sentenced as a habitual felony offender to concurrent…
The full statement of facts, procedural history, and disposition for this case are member content.
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WEBSTER, Judge.
Appellant, an inmate of the state correctional system, seeks review of an order which denied his motion, filed pursuant to Florida Rule of Criminal Procedure 3.850, seeking a belated appeal. Because the portions of the record attached to the order do not conclusively show that appellant is not entitled to a belated appeal, we reverse.
It appears that appellant was convicted of attempted first-degree murder with a firearm and robbery with a firearm in either 1990 or 1991, and sentenced to concurrent 40-year terms, as an habitual felony offender. His appeal to this court resulted in affirmance of both convictions, and of the sentence for robbery with a firearm. However, his sentence for attempted first-degree murder -with a firearm, a life felony, was vacated because a life felony was not subject to enhancement pursuant to the habitual fel ony offender statute, and the case was remanded for resentencing as to that conviction. Glover v. State, 596 So. 2d 1258 (Fla. 1st DCA), approved, 610 So. 2d 439 (Fla.1992). On remand, it appears that the trial court entered an amended judgment and sentence which merely deleted reference to the habitual felony offender statute as to the sentence for attempted first-degree murder with a firearm. Thus, as amended, the judgment and sentence called for appellant to serve a 40-year habitual felony offender sentence for the robbery with a firearm conviction, and a concurrent 40-year non-habitual felony offender sentence for the attempted first-degree murder with a firearm conviction.
Appellant claims that, following the resentencing, he timely requested his attorney to appeal, but that no appeal was taken. In its order, the trial court gave two reasons in support of its denial of relief: that the sentence imposed on remand was consistent with the mandate of this court, and that appellant had failed to show prejudice because there was no issue which might have been appealed following the resentencing.
To comply with this court’s mandate, on remand, it was incumbent upon the trial court to impose a sentence pursuant to the guidelines for the attempted first-degree murder with a firearm conviction. The portions of the record attached to the trial court’s order do not establish that the 40-year sentence imposed on remand was one which was consistent with the guidelines. If it was not, then appellant would have had a valid issue to appeal following resentencing.
Because the portions of the record attached to the trial court’s order do not conclusively show that appellant is not entitled to a belated appeal, we reverse and remand for further proceedings. Should the trial court again determine that denial of appellant’s motion is appropriate without a hearing, it shall attach to its order denying relief those portions of the record which conclusively show that appellant is not entitled to a belated appeal.
REVERSED and REMANDED, with directions.
ALLEN and MICKLE, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Glover v. State, 596 So. 2d 1258 (Fla. 1st DCA 1992)
- State v. Glover, 610 So. 2d 439 (Fla. 1992)