RENE O. ZELAYA, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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Rene Zelaya appealed an order denying his motion for jail time credit under Florida Rule of Criminal Procedure 3.800. The Third District Court of Appeal reversed and remanded because the record was incomplete and did not conclusively demonstrate that Zelaya was not entitled to relief.
The court reversed the denial of Zelaya's motion because the record did not conclusively demonstrate that he was not entitled to relief. On remand, the trial court must either attach record portions that conclusively refute Zelaya's claim or award him appropriate credit for time served.
“Because the record before us fails to conclusively demonstrate that the appellant is not entitled to any relief, we reverse the denial of Zelaya's motion for post conviction relief.”
The court's holding that reversal is required when the record is incomplete and does not conclusively refute the appellant's claim.
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Join FLexlaw to unlock all legal intelligenceZelaya sought credit for jail time served. The State claimed Zelaya waived such credit, but the plea transcript was not attached to the order denying …
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PER CURIAM.
Rene Zelaya appeals an order denying his motion under Florida Rule of Criminal Procedure 3.800 for credit for jail time served. We reverse and remand.
The record before us is unclear concerning whether Zelaya is entitled to the jail time credit he seeks. The State claims that Zelaya is not entitled to additional credit because he waived such credit. The plea transcript, however, was not attached to the order of denial.
Because the record before us fails to conclusively demonstrate that the appellant is not entitled to any relief, we reverse the denial of Zelaya’s motion for post conviction relief. See Lundy v. State, 912 So. 2d 671 (Fla. 3d DCA 2005); Fla. R.Crim. P. 3.850(d); Fla. R.App. P. 9.141(b)(2)(D) (“On appeal from the denial of relief, unless the record shows conclusively that the appellant is entitled to no relief, the order shall be reversed and the cause remanded for an evidentiary hearing or other appropriate relief.”). See also Barfield v. State, 900 So. 2d 723 (Fla. 3d DCA 2005); Cozza v. State, 756 So. 2d 272 (Fla. 3d DCA 2000). On remand, the trial court should either attach those portions of the record that conclusively refute Zelaya’s claim or award him the appropriate credit for time served.
Reversed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Connor McDUFFIE v. Scotty's, Inc., 756 So. 2d 272 (Fla. 5th DCA 2000)
- Cozza v. State, 756 So. 2d 272 (Fla. 3d DCA 2000)
- Norris Lundy, Jr. v. State, 912 So. 2d 671 (Fla. 3d DCA 2005)
- Barfield v. State, 900 So. 2d 723 (Fla. 3d DCA 2005)
- Colandro Peters v. State, 900 So. 2d 723 (Fla. 4th DCA 2005)