MAX FENELON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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PER CURIAM.
Max Fenelon appeals the denial of his motion to correct illegal sentence, filed pursuant to Florida Rule of Criminal Procedure 3.800(a). The motion raised two claims, but we reverse only as to one. We accept the state’s concession of error on this claim and reverse, because the trial court failed to attach record evidence to refute the facially sufficient claim that the ten-year sentence for battery while in a detention facility exceeded the five-year statutory maximum for a third-degree felony. See § 784.082(3), Fla. Stat. (1999); Johnson v. State, 665 So. 2d 380 (Fla. 4th DCA 1996) (holding that the trial court must attach portions of the record conclusively refuting a legally sufficient 3.800(a) claim).
Accordingly, we reverse and remand for attachment of portions of the record refuting appellant’s claim of an illegal sentence, if such records exist.
WARNER, TAYLOR and MAY, JJ., concur.
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Rudicil v. State, 31 So. 3d 328 (Fla. 4th DCA 2010)…e next to the entry “per agreement.” Rudicil argues the trial court erred in denying his 3.800(a) motion because the face of the record, without a transcript, does not refute his claim that he is entitled to credit for time served. Fenelon v. State, 932 So. 2d 431, 431 (Fla. 4th DCA 2006) (holding that trial court must attach portions of record conclusively refuting a legally sufficient 3.800(a) claim)(relying on Johnson v. State, 665 So. 2d 380 (Fla. 4th DCA 1996)). The State argued before the trial court th…
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Linder v. State, 54 So. 3d 1031 (Fla. 4th DCA 2011)…50(d), there is no such requirement in rule 3.800(a) for the court to attach portions of the record conclusively refuting allegations of the motion. Nevertheless, this requirement has been engrafted by judicial decision. See, e.g., Fenelon v. State, 932 So. 2d 431, 431 (Fla. 4th DCA 2006) (holding that trial court must attach portions of record conclusively refuting a legally sufficient 3.800(a) claim); see also Johnson v. State, 665 So. 2d 380 (Fla. 4th DCA 1996). In this case, however, the state attached c…
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Eubanks v. State, 940 So. 2d 605 (Fla. 4th DCA 2006)…AM. The order denying the appellant’s rule 3.800(a) motion to correct illegal sentence is reversed, and the case is remanded to the lower court for attachment of records that conclusively refute the allegations in the motion. See Fenelon v. State, 932 So. 2d 431 (Fla. 4th DCA 2006) (reversing because the “trial court failed to attach record evidence to refute the facially sufficient claim”) (citing Johnson v. State, 665 So. 2d 380 (Fla. 4th DCA 1996)). GUNTHER, POLEN and SHAHOOD, JJ., concur.…
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- Cuevas v. Cuevas, 665 So. 2d 380 (Fla. 3d DCA 1996)
- Jacobo Jesus Chigin v. State, 665 So. 2d 380 (Fla. 3d DCA 1996)