FELIPE LIZANO
v.
THE STATE OF FLORIDA

Fla. 3d DCA | 2023-11-29
No. 2023-0955
Florida District Court of Appeal, Third District (2023)

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Holding

A trial court does not err in denying a postconviction motion to correct an illegal sentence when the amended sentencing order merely reflects the oral designation pronouncement made at the original sentencing hearing.

Headnotes

[1] A sentencing order that merely corrects a prior order to reflect an oral habitual felony offender designation made at a sentencing hearing does not violate the constituti…

[2] A defendant bears the burden of attaching to a postconviction motion copies of transcripts from relevant proceedings to support their claims.

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Facts & Procedural History

Lizano was sentenced on September 27, 2017, and the trial court orally designated him as an habitual felony offender. An October 4, 2017 order initial…

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Topics
Habitual Felony Offender Illegal Sentence Motion To Correct Illegal Sentence Double Jeopardy

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Opinion of the Court

Opinion filed November 29, 2023. Not final until disposition of timely filed motion for rehearing.

________________

No. 3D23-955 Lower Tribunal No. F15-23662

________________

Felipe Lizano,

Appellant,

vs.

The State of Florida,

Appellee.

An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Alberto Milian, Judge. Felipe Lizano, in proper person. Ashley Moody, Attorney General, and Richard L. Polin, Chief Assistant Attorney General, for appellee. Before FERNANDEZ, SCALES and MILLER, JJ. PER CURIAM.

Self-represented appellant Felipe Lizano appeals a May 16, 2023

order denying Lizano’s May 3, 2023 postconviction motion to correct what

Lizano asserts is an illegal sentence. In his postconviction motion (and on

appeal), Lizano argues that the trial court’s December 6, 2017 amended

sentencing order – designating Lizano as an habitual felony offender – that

corrected an October 4, 2017 sentencing order (mitigating the earlier

sentence), violated the constitutional prohibition on double jeopardy.

The record, though, reveals that the challenged amended sentencing

order was entered merely to reflect the oral habitual felony offender

designation pronouncement made at the September 27, 2017 sentencing

hearing. The trial court, therefore, did not err in denying Lizano’s

postconviction motion.

Affirmed.1

Footnotes
1 Lizano argues that, during two other hearings in this case, occurring on October 4 and October 12, 2017, the trial court failed to designate Lizano as an habitual felony offender. Lizano bore the burden of attaching to his postconviction motion copies of the transcripts of these proceeedings, which he failed to do. See Cox v. State, 221 So. 3d 723, 725 (Fla. 3d DCA 2017) (“In meeting his burden on a motion to correct illegal sentence, the defendant may not rely on facts beyond the face of the record.”); Williams v. State, 957 So. 2d 600, 604 (Fla. 2007) (concluding that it is the defendant’s burden “to demonstrate an entitlement to relief on the face of the record”). Hence, without opining on the merits of this argument, our affirmance is without prejudice to Lizano filing a renewed postconviction motion attaching copies of the relevant transcripts that Lizano asserts support his argument in this regard.

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