TIMOTHY MARTIN, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred in summarily denying the motion to correct an illegal sentence without a proper sentencing hearing.
Appellant sought to correct an illegal sentence based on an improperly calculated scoresheet. A prior appeal resulted in a remand for resentencing. Th…
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PER CURIAM.
Timothy Martin appeals the summary denial of his motion to correct illegal sentence pursuant to rule 3.800(a) of the Florida Rules of Criminal Procedure alleging that his sentence was based on an improperly calculated scoresheet. We previously held in Martin v. State, 795 So. 2d 143 (Fla. 3d DCA 2001), that under the version of the habitual offender statute then in effect, Martin could not be sentenced as a habitual offender in count five because the statute did not authorize habitualization for a life felony. We therefore remanded the ease to the trial court with directions to strike the habitual offender adjudication from count five and resentence the defendant within the guidelines. Because Martin’s guidelines maximum was twenty-two years and he had already agreed, in the plea bargain, to a twenty-seven year habitual offender sentence on counts one and two, we instructed that, on remand, Martin need not be present for the resentencing on count five.
The record reflects that in the trial court, the State admitted that counts one and two should not have been scored as additional offenses and therefore recomputed his scoresheet to reflect a permitted range of nine to twenty-two years in State Prison. The State argued that Martin should be sentenced to twenty-two years in prison. The trial court denied Martin’s motion “as he is already sentenced to 22 years in State Prison as to count 6.” It is not clear from the record whether Martin is currently serving a twenty-two or a twenty-seven year sentence, nor is it clear whether the State has satisfied the sequential conviction requirement necessary for the imposition of a habitual offender sentence.
We therefore reverse and remand for a new sentencing hearing at which point the State will have the opportunity to present record evidence that other prior convictions existed that would satisfy the sequential conviction requirement for habitualization. See Bover v. State, 797 So. 2d 1246, 1251 (Fla.2001).
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Butler v. State, 93 So. 3d 328 (Fla. 2d DCA 2011)…on Butler upon an earlier conviction. The State concedes this in its answer brief. We therefore reverse and remand for further proceedings. The State shall have the opportunity to submit competent evidence of a third conviction. See Martin v. State, 884 So. 2d 452, 453 (Fla. 3d DCA 2004). If the State cannot do so, Butler shall have the opportunity to withdraw his plea, see McDuffie v. State, 946 So. 2d 99, 100 (Fla. 2d DCA 2006), at which time the parties may arrive at a new plea agreement that omits the VCC…
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Cunningham v. State, 109 So. 3d 1261 (Fla. 2d DCA 2013)…t reflect a new conviction and thus did not support a violent career criminal sentence). On remand, the postconviction court may again deny this claim if it attaches documents from the record demonstrating sequential predicates. See Martin v. State, 884 So. 2d 452, 453 (Fla. 3d DCA 2004). If the postconviction court is unable to attach record documentation to refute Cunningham’s claims, it shall resentence Cunningham to any sentence contemplated by his plea and furlough agreement. Affirmed in part, reversed…
Authorities Cited
- Bover v. State, 797 So. 2d 1246 (Fla. 2001)
- Martin v. State, 795 So. 2d 143 (Fla. 3d DCA 2001)