SALVATORE BENNETT, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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The court held that the state failed to provide sufficient records below to establish the appellant's habitual offender status, and the appellate court cannot cure this defect.
Appellant sought to correct an illegal sentence, arguing he did not qualify as a habitual offender because his prior convictions were sentenced on the…
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PER CURIAM.
In his rule 3.800(a) motion to correct an illegal sentence, appellant argued in part that he did not qualify as a habitual offender because all of his prior convictions were sentenced on the same day during the same sentencing proceeding. § 775.084(5), Fla. Stat. (2004).
In response to his motion, the state asserted that he has a number of prior convictions that were sentenced on two different dates and that the certified convictions were part of the court file. However, no records were attached to the state’s response below or the trial court’s order to show that appellant’s prior convictions satisfy the sequential sentencing requirement of the habitual offender statute. The state attempted to provide the records on appeal. However, this court has repeatedly held that the state cannot cure the defect in the trial court’s order by providing records to this court. Collins v. State, 805 So. 2d 73 (Fla. 4th DCA 2002); Foley v. State, 657 So. 2d 929 (Fla. 4th DCA 1995); see also Fla. R.App. P. 9.141(b)(2)(D).
As a result, we reversed the trial court’s order and on remand instructed the trial court to address this court’s decision in Richardson v. State, 884 So. 2d 950 (Fla. 4th DCA 2004), quashed by State v. Richardson, 915 So. 2d 86 (Fla.2005). Bennett v. State, 904 So. 2d 447 (Fla. 4th DCA 2005).
Following its decision in Richardson, the Florida Supreme Court quashed this court’s earlier decision in Bennett and remanded this case for reconsideration.
Because appellant stated a legally sufficient claim, which was not refuted by the attached records, the circuit court’s order is reversed and this case is remanded for the court to attach records that show appellant qualifies for habitual offender sentencing.
POLEN, KLEIN and SHAHOOD, JJ., concur.
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Ocelyn ST. CYR v. State, 126 So. 3d 1166 (Fla. 4th DCA 2012)…ists of the foregoing documents, and the sentencing documents are not attached to any of them. We have consistently held that “the state cannot cure the defect in the trial court’s order by providing records [*1167] to this court.” Bennett v. State, 946 So. 2d 84, 85 (Fla. 4th DCA 2006). The state must respond to the appellant’s brief with the documents contained within the record. The state and the criminal justice community should review and suggest an amendment to the rule on what constitutes the record…
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Poitier v. State, 967 So. 2d 1017 (Fla. 4th DCA 2007)…rt denied appellant’s motion, citing to records that conclusively refuted the allegation. However, the records were merely cited and not attached. As such, we are compelled to reverse and remand for attachment of those records. See Bennett v. State, 946 So. 2d 84 (Fla. 4th DCA 2006) (reversing the denial of a rule 3.800(a) motion because the order on appeal did not include record attachments that refuted the allegations of the motion). SHAHOOD, C.J., GUNTHER and MAY, JJ., concur.…
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Henderson v. State, 199 So. 3d 553 (Fla. 4th DCA 2016)…record sufficient to support the denial.” Allen v. State, 57 So. 3d 296, 296 (Fla. 4th DCA 2011) (citation omitted). The state agrees that the proper remedy is to remand for the court to attach records which support its order. See Bennett v. State, 946 So. 2d 84, 85 (Fla. 4th DCA 2006) (“[T]he state cannot cure the defect in the trial court’s order by providing records to this court.”). Based on the foregoing, we reverse and remand for the circuit court to attach the records which support its denial of th…
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
- Erick Richardson v. State, 884 So. 2d 950 (Fla. 4th DCA 2003)
- State v. Erick Richardson, 915 So. 2d 86 (Fla. 2005)
- Collins v. State, 805 So. 2d 73 (Fla. 4th DCA 2002)
- Foley v. State, 657 So. 2d 929 (Fla. 4th DCA 1995)
- Bennett v. State, 904 So. 2d 447 (Fla. 4th DCA 2005)
- Dixon v. River City Brewing Co., 904 So. 2d 447 (Fla. 1st DCA 2005)