JAMES MORENCY, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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James Morency appealed the summary denial of two post-conviction motions under Florida Rule of Criminal Procedure 3.800(a)—one seeking correction of an allegedly illegal sentence for violation of probation and another seeking jail credit for time served. The court reversed because the trial court failed to attach record excerpts conclusively demonstrating that Morency was not entitled to relief.
The court reversed and remanded because the post-conviction record failed to conclusively show that the appellant was entitled to no relief. On appeal from summary denial of a Rule 3.800(a) motion, the reviewing court must reverse unless the record conclusively demonstrates the appellant is entitled to no relief.
[1] A summary denial of a motion under Florida Rule of Criminal Procedure 3.800(a) must be reversed on appeal unless the post-conviction record conclusively shows that the ap…
[2] A trial court must attach record excerpts conclusively showing that a defendant is not entitled to relief when summarily denying a motion for jail credit.
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Join FLexlaw to unlock all legal intelligence“On appeal from a summary denial of a motion under Florida Rule of Criminal Procedure 3.800(a), this court must reverse unless the post-conviction record shows conclusively that the appellant is entitled to no relief.”
Establishes the standard of review for summary denials of Rule 3.800(a) motions—the record must affirmatively show no entitlement to relief.
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Join FLexlaw to unlock all legal intelligenceMorency claimed he was entitled to 364 days of credit for time spent in Miami-Dade County jail prior to sentencing. He also challenged a twenty-year s…
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PER CURIAM.
James Morency appeals from two orders rendered on the same day denying his petitions filed pursuant to Florida Rule of Criminal Procedure 3.800(a), the first summarily denying a motion to correct an illegal sentence and the second summarily denying a motion for jail credit. We consider both and reverse them.
Morency presented a facially valid claim that he is entitled to 364 days of credit for time spent in Miami-Dade county jail prior to his sentencing in the current cases. The trial court summarily denied the motion but failed to attach any record substantiating its decision. Moren-cy also claims that his twenty year sentence upon violation of probation is illegal. Once again, the order summarily denying relief was not accompanied by any record conclusively showing that the appellant is not entitled to any relief. On appeal from a summary denial of a motion under Florida Rule of Criminal Procedure 3.800(a), this court must reverse unless the post-conviction record shows conclusively that the appellant is entitled to no relief. See Fla. R. App. P. 9.141(b)(2)(A) and (D).
Because the record now before us fails to make the required showing we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the post-conviction motion, the court shall attach record excerpts conclusively showing that the appellant is 1) not entitled to the jail credit for time served as he claims, and 2) that his 20-year sentence upon violation of probation is not illegal.1
Reversed and remanded.
. Morency seems to suggest in his petition to correct an illegal sentence that the trial court could not sentence him upon violation of probation because the probation violation offense was nolle prossed by the state. He is incorrect. A new criminal offense can constitute a probation violation even if nolle prossed by the state. State v. Jenkins, 762 So. 2d 535 (Fla. 4th DCA 2000); see also Swilley v. State, 781 So. 2d 458 (Fla. 2d DCA 2001)(absent evidence of a substantive probation violation, summary denial of rule 3.800 petition reversed for attachment of record to establish that defendant committed a substantive violation).
Cases With Similar Vibessemantic neighbors from the corpus
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Christian v. State, 84 So. 3d 437 (Fla. 5th DCA 2012)…ntive violation of youthful offender probation, irrespective of whether the conduct results in new charges or convictions. See, e.g., Flores v. State, 46 So. 3d 102 (Fla. 3d DCA 2010), rev. granted, 58 So. 3d 260 [*440] (Fla.2011); Morency v. State, 955 So. 2d 67, 68 n. 1 (Fla. 3d DCA 2007). On appeal, however, Christian argues that our holding in Robinson should be viewed as conflicting with Rogers v. State, 972 So. 2d 1017 (Fla. 4th DCA 2008), which contains language suggesting that a new crime may only b…
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Flores v. State, 46 So. 3d 102 (Fla. 3d DCA 2010)…lley v. State, 781 So. 2d 458 (Fla. 2d DCA 2001); Willis v. State, 744 So. 2d 1265 (Fla. 1st DCA 1999); Johnson v. State, 678 So. 2d 934 (Fla. 3d DCA 1996). This is true even when the new charges are nolle prossed or dismissed. See Morency v. State, 955 So. 2d 67, 68 n. 1 (Fla. 3d DCA 2007); Swilley, 781 So. 2d at 460 (“The filing of a nolle prosequi does not mean that the trial court cannot find that [the defendant] substantively violated his community control by committing new offenses.”) Moreover, a conv…
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Jacques v. State, 95 So. 3d 419 (Fla. 3d DCA 2012)…not affect this determination. See Flores v. State, 46 So. 3d 102, 104 (Fla. 3d DCA 2010) (recognizing that the trial court may find a substantive violation of probation "even when the new charges are nolle prossed or dismissed”); Morency v. State, 955 So. 2d 67, 68 n. 1 (Fla. 3d DCA 2007) ("A new criminal offense can constitute a probation violation even if nolle prossed by the state.”). . As noted in Yegge v. State, 88 So. 3d 1058, 1060 (Fla. 2d DCA 2012): Importantly, this is not a mere paper victory.…
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
- Waymon M. Swilley v. State, 781 So. 2d 458 (Fla. 2d DCA 2001)
- State v. Jenkins, 762 So. 2d 535 (Fla. 4th DCA 2000)