HORACE CUMMINGS, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A court may correct an illegal sentence at any time, and a motion to do so is not untimely.
Appellant argued his 30-year sentences for attempted armed robbery exceeded the statutory maximum of 15 years. The trial court denied his motion as un…
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The appellant filed a motion pursuant to Florida Rule of Criminal Procedure 3.800(a), arguing that his 30-year sentences imposed for two counts of attempted armed robbery, a second-degree felony as set forth in sections 812.13(2)(a), and 777.04(4)(c), Florida Statutes (1997), exceed the statutory maximum of 15 years’ imprisonment. The trial court denied the motion, finding it to be untimely filed, and also noted that the appellant had been sentenced as a habitual felony offender. However, rule 3.800(a) provides in part that “[a] court at any time may correct an illegal sentence,” and thus the motion was not untimely. Furthermore, the court failed to attach any portion of the record indicating that the appellant was indeed sentenced as a habitual felony offender or to provide any other attachments conclusively refuting the appellant’s facially sufficient claim.
In response to this Court’s order issued pursuant to Toler v. State, 493 So.2d 489 (Fla. 1st DCA 1986), the state has conceded that the order should be reversed and remanded for a record attachment conclusively refuting the appellant’s claim or for the appellant to be resentenced.
We therefore reverse and remand for the trial court to either attach the portion of the record conclusively refuting the appellant’s claim, or for the court to resen-tence the appellant. See, e.g., Ross v. State, 14 So.3d 1198 (Fla. 1st DCA 2009).
REVERSED AND REMANDED.
ROBERTS, WETHERELL, and MARSTILLER, JJ., concur.
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Obie Dewayne Holliman v. State, 152 So. 3d 783 (Fla. 1st DCA 2014)…e trial court either to attach to its order the portions of the record refuting the appellant’s claim or to grant the requested relief. Fla. R. App. P. 9.141(b)(2)(d); see, e.g., Brown v. State, 132 So. 3d 363 (Fla. 1st DCA 2014); Cummings v. State, 106 So. 3d 33 (Fla. 1st DCA 2013); Higginbotham v. State, 69 So. 3d 1041 (Fla. 1st DCA 2011). But see Casteel v. State, 141 So. 3d 624 (Fla. 4th DCA 2014) (“We do not accept the State’s concession. The Florida Supreme Court has made clear that a trial court is no…
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Cummings v. State (Fla. 1st DCA 2019)
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Cummings v. Sec'y, Fla. Dep't of Corr. (Duval County) (M.D. Fla. 2024)…--PAGE 4--- Case 3:21-cv-00711-TJC-LLL Document 33 Filed 08/29/24 Page 4 of 15 PageID 3567 convictions, because attempted armed robbery is a second degree felony carrying a maximum sentence of fifteen years. Resp. Ex. 57; see also Cummings v. State, 106 So. 3d 33 (Fla. 1st DCA 2013). On January 15, 2014, on remand, the trial court vacated its July 20, 2012, order; granted Petitioner's 3.800(a) motion; and ordered that Petitioner be resentenced on counts nine and ten.5 Resp. Ex. 60 at 81-84. Before the res…
Authorities Cited
- Toler v. State, 493 So. 2d 489 (Fla. 1st DCA 1986)
- Eugene v. Ross, 14 So. 3d 1198 (Fla. 1st DCA 2009)