HORACE HANKERSON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred by summarily denying the motion without attaching supporting documentation or holding an evidentiary hearing.
Hankerson appealed the denial of his motion challenging his sentence, arguing it was imposed under unconstitutional sentencing guidelines. The trial c…
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PER CURIAM.
Horace Lee Hankerson appeals the summary denial of his motion filed pursuant to rule 3.800(a), Florida Rules of Criminal Procedure. Hankerson was convicted of aggravated fleeing or attempting to elude a , police officer and received a sentence of 145.75 months in the Department of Corrections. He now complains that the sentence was improperly imposed under the 1995 version of the sentencing guidelines, a version held to be unconstitutional in Heggs v. State, 759 So. 2d 620 (Fla.2000). He also alleges that his offense occurred within the window period for raising a Heggs claim,1 and that his sentence would have been a departure under the 1994 guidelines.
The trial court determined that Hanker-son was actually sentenced pursuant to the habitual felony offender statute rather than the sentencing guidelines. In support of that determination, the trial court made reference to a certain page in the sentencing hearing transcript. However, that page is not attached to the court’s order and the court did not otherwise indicate that it was supposed to be attached. Further, the written sentence attached to Hankerson’s notice of appeal does not show that the spaces for sentencing him as an habitual felony offender were checked off.
The attorney general in its response to this court candidly acknowledges that the trial court judge “did not attach any documentation in support of his order denying relief.” The record supporting the denial of relief under rule 3.800(a) must be attached to the trial court’s order if a prima facie claim is alleged. E.g., Bunch v. State, 622 So. 2d 525 (Fla. 5th DCA 1993); see also Thomas v. State, 634 So. 2d 175 (Fla. 1st DCA 1994).
We reverse and remand for attachments of documents to the order refuting Han-kerson’s claim, or for an evidentiary hearing.
REVERSED AND REMANDED.
PETERSON, GRIFFIN and PALMER, JJ., concur. . See Trapp v. State, 760 So. 2d 924 (Fla.2000).
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Trizell E. Johnson v. State, 881 So. 2d 88 (Fla. 5th DCA 2004)…OC to compute and apply credit for time served in state prison). The order denying relief is REVERSED, and the case REMANDED to the trial court for the correction of defendant’s sentence. PETERSON and GRIFFIN, JJ., concur. . Cf. Fritznerv. State, 864 So. 2d 574 (Fla. 5th DCA 2004); McKowen v. State, 816 So. 2d 1254 (Fla. 5th DCA 2002).…
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Hankerson v. State, 897 So. 2d 555 (Fla. 5th DCA 2005)…PER CURIAM. ON MOTION TO ENFORCE MANDATE Horace Hankerson filed a petition for writ of mandamus on January 13, 2005, which we treat as a motion to enforce the mandate issued in Hankerson v. State, 864 So. 2d 574 (Fla. 5th DCA 2004). We recognize that the circuit court attempted to comply with our mandate by issuing an amended order, but the same was directed to the wrong case. Specifically, the amended order should have only referenced case no. 97-387. Acco…
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Gallinat v. State, 909 So. 2d 426 (Fla. 5th DCA 2005)…to file a motion pursuant to Rule 3.850, or seek other remedies. See State v. Mancino, 714 So. 2d 429 (Fla.1998); Atwood v. State, 765 So. 2d 242 (Fla. 1st DCA 2001). We en banc this case because we recede from any inference in Hankerson v. State, 864 So. 2d 574 (Fla. 5th DCA 2004) that holding an evidentiary hearing is proper to resolve matters raised in motions filed pursuant to Rule 3.800(a). We reaffirm this court’s position on this issue, as expressed in Paul v. State, 830 So. 2d 953 (Fla. 5th DCA 2002…1 / 2
Previewing 3 of 4 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Heggs v. State, 759 So. 2d 620 (Fla. 2000)
- Xzavier Trapp v. State, 760 So. 2d 924 (Fla. 2000)
- Am. Sightseeing Tours, Inc. v. Gerda Jackson, 634 So. 2d 175 (Fla. 3d DCA 1994)
- Thomas v. State, 634 So. 2d 175 (Fla. 1st DCA 1994)
- Bunch v. State, 622 So. 2d 525 (Fla. 5th DCA 1993)