GERRY L. PARKER, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Court reversed summary denial of postconviction motion where appellant claimed his written judgment imposed a habitual felony offender sentence that was not orally pronounced, holding the claim was facially sufficient and should be addressed under rule 3.800(a).
A postconviction claim that a written judgment imposes a habitual felony offender sentence not orally pronounced by the sentencing judge is facially sufficient and must be addressed on the merits under rule 3.800(a) rather than summarily denied as untimely.
[1] A claim that a written judgment imposes a sentence enhancement not orally pronounced by the sentencing judge may be construed as a rule 3.800(a) motion and is facially su…
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Join FLexlaw to unlock all legal intelligenceAppellant was sentenced and received a written judgment imposing a habitual felony offender sentence, but the sentencing judge did not orally pronounc…
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PER CURIAM.
The Appellant challenges the postconviction court’s summary denial of his rule 3.850 postconvietion motion. Because the Appellant’s third claim that his written judgment does not comport with the oral pronouncement is facially sufficient, we reverse. All other issues are affirmed without further discussion.
The Appellant claims his sentence is illegal because the sentencing judge did not orally pronounce that the sentence was a habitual felony offender sentence; however, the written judgment contains the imposition of a habitual felony offender sentence. The trial court failed to address the Appellant’s claim because the rule 3.850 motion was summarily denied as untimely. However, this Court may construe the claim as if it were filed under rule 3.800(a). See Valdes v. State, 765 So. 2d 774, 777 (Fla. 1st DCA 2000). As the State concedes, the trial court should have treated the third claim as though it were filed pursuant to rule 3.800(a). We accordingly reverse the postconviction court’s summary denial of the Appellant’s third claim and remand for the postconviction court to attach appropriate record portions refuting the claim, or grant relief.
AFFIRMED IN PART, REVERSED IN PART, and REMANDED.
DAVIS, PADOVANO, and ROBERTS, JJ., concur.