TERRY MCINTYRE, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Terry McIntyre challenged his sentence as a habitual offender, arguing he lacked the required sequential predicate convictions and that proper guideline scoresheets were not prepared. The Fourth District Court of Appeal reversed the summary denial of his rule 3.850 postconviction relief motion, finding the trial court's reliance on a Department of Corrections printout rather than the actual case record was insufficient, and that the state failed to address the scoresheet issue.
The court reversed and remanded on both grounds. The Department of Corrections printout does not constitute a sufficient portion of the case record to satisfy rule 3.850(d) requirements for summary denial, and the state failed to refute the scoresheet issue, making it not harmless error.
[1] A print-out from the Department of Corrections' Offender Network does not constitute a portion of the files and record in a case for purposes of rule 3.850(d), Florida Ru…
[2] A claim that a defendant lacked the sequential predicate convictions to support sentencing as a habitual felony offender is a legally sufficient ground for postconviction…
Previewing 2 of 5 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“Such a print-out does not constitute a portion of the files and record in this case so as to satisfy the requirements of rule 3.850(d)”
Establishes that a Department of Corrections printout is insufficient to support summary denial of a rule 3.850 motion
Previewing 1 of 3 key quotes on this case — the court’s exact language, pinpointed for members.
Join FLexlaw to unlock all legal intelligenceMcIntyre entered a nolo contendere plea and was sentenced to ten years as a habitual offender on two counts and five years on three possession of coca…
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PER CURIAM.
Appellant appeals the summary denial of his motion for postconviction relief, filed pursuant to rule 3.850, Florida Rules of Criminal Procedure, and the order denying his motion for rehearing. We reverse and remand.
After entering a nolo contendere plea, appellant was sentenced to ten years as a habitual offender on two counts and to five years on three possession of cocaine counts, all concurrently. His first ground for relief was that he lacked the sequential predicate convictions to support his sentencing as a habitualization felony offender, a legally sufficient ground for relief under rule 3.850. See Prince v. State, 684 So. 2d 850 (Fla. 2d DCA 1996). The trial court’s denial was based on the state’s response which, rather than attaching por tions of the record in the case, attached a print-out from the State of Florida Department of Corrections’ Corrections Offender Network, purporting to demonstrate, from appellant’s history of incarceration, that he had the requisite prior convictions.
Such a print-out does not constitute a portion of the files and record in this case so as to satisfy the requirements of rule 3.850(d) (“If the motion, files and records in the case conclusively show that the mov-ant is entitled to no relief, the motion shall be denied without a hearing”) (emphasis added). See generally King v. State, 590 So. 2d 1032 (Fla. 1st DCA 1991).
Appellant’s second ground was that • the state failed to present a guideline scoresheet for the possession of cocaine offenses which were not subject to habitual sentencing, and that only one scoresheet was prepared, consolidating three cases into one for habitualization. The state has conceded that this was not refuted by the state’s response, but argues it was harmless. We disagree.
Accordingly, we reverse and remand as to both grounds for relief, either for an evidentiary hearing or the attachment of portions of the record that conclusively refute them.
We agree with the state that if appellant did not previously contest his qualification for sentencing as a habitual offender, the state should be given the opportunity to attempt to so qualify him. See Bover v. State, 797 So. 2d 1246, 1251 (Fla.2001).
Reversed.
KLEIN, SHAHOOD and GROSS, JJ., concur.
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Gibson v. State, 967 So. 2d 410 (Fla. 4th DCA 2007)…ody from March 20, 1997 to December 31, 1997, without reference to any case numbers. The printout from the DOC offender network “does not constitute a portion of the files and record” in this case so as to satisfy rule 3.800. Cf. McIntyre v. State, 844 So. 2d 679, 680 (Fla. 4th DCA 2003). Neither does the “Inmate Movement/Transfer History” offered by the state in its response filed below satisfy the rule. Nothing presented to the trial court to date has adequately refuted Gibson’s claim that his last release…
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Reed v. State, 965 So. 2d 1241 (Fla. 4th DCA 2007)…violation of probation and does not conclusively refute the allegations. Further, this court has held that a DOC Offender Network printout will not satisfy the requirements of Florida Rule of Crimi [*1242] nal Procedure 3.850(d).1 McIntyre v. State, 844 So. 2d 679 (Fla. 4th DCA 2003). As such, the state has failed to conclusively refute appellant’s allegations on the face of the record. Therefore, this matter is reversed and remanded to the trial court for further attachment of portions of the record which c…
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Bruce v. State (Fla. 3d DCA 2019)
Authorities Cited
- Bover v. State, 797 So. 2d 1246 (Fla. 2001)
- King v. State, 590 So. 2d 1032 (Fla. 1st DCA 1991)
- Prince v. State, 684 So. 2d 850 (Fla. 2d DCA 1996)