DEXTER GUNN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Dexter Gunn appealed a trial court's denial of his motion to correct an allegedly illegal sentence, claiming a discrepancy between the judge's oral pronouncement and written sentence. The court affirmed the denial, finding that the alleged illegality was not clearly apparent on the face of the record and therefore required a different procedural remedy.
The court affirmed the denial of the motion. While the court disagreed that the motion was barred as successive (since the claim had not been previously considered on the merits), it agreed on the merits that Gunn's claim was either refuted by the record or at best ambiguous and not clearly apparent on the face of the record, making a rule 3.850 motion the proper remedy.
“When the alleged illegality of the sentence is not apparent on the face of the record, a rule 3.850 motion is the only available remedy.”
Establishes the proper procedural remedy when a claimed sentence illegality is ambiguous or not clearly apparent from the record.
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Join FLexlaw to unlock all legal intelligenceGunn filed a rule 3.800(a) motion alleging a discrepancy between the sentencing judge's oral pronouncement and his written sentence. The trial court d…
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PER CURIAM.
Dexter Gunn appeals an order denying his rule 3.800(a) motion to correct illegal sentence. The trial court denied the motion based on the state’s response. The state argued for denial both because the motion was successive to prior motions raising the same claim of discrepancy between the sentencing judge’s oral pronouncement and his written sentence, and on the merits.
We disagree with the state’s first reason; there is no indication that the claim ever was considered on the merits before. Until the supreme court issued Williams v. State, 957 So. 2d 600 (Fla.2007), this court took the position that such a ground was not cognizable in a rule 3.800(a) motion. See Kelly v. State, 739 So. 2d 1164 (Fla. 5th DCA 1999) (holding that consideration under rule 3.800(a) was not barred by law of the case because motion was first denied on procedural grounds).
However, upon consideration of the entire transcript of the sentencing hearing, as well as the trial court’s separate written habitualization order, which was entered on the same date as the sentencing hearing, we agree that, on the merits, Gunn’s claim either is refuted by the record, or at best is ambiguous; certainly, it is not one that is clear on the face of the record. “When the alleged illegality of the sentence is not apparent on the face of the record, a rule 3.850 motion is the only available remedy.” Renaud v. State, 926 So. 2d 1241, 1242 (Fla.2006).
Affirmed.
STONE, FARMER and HAZOURI, JJ., concur.
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Citator
Cited By
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Bynes v. State, 267 So. 3d 1043 (Fla. 4th DCA 2019)
Authorities Cited
- Williams v. State, 957 So. 2d 600 (Fla. 2007)
- Aundray Kelly v. State, 739 So. 2d 1164 (Fla. 5th DCA 1999)
- Wilmann Renaud v. State, 926 So. 2d 1241 (Fla. 2006)