05-2051 LOPEZ V. STATE

State: Florida

Court: Florida Third District Court

Docket No: 05-2051 LOPEZ V. STATE

Case Date: 12/14/2005

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.

IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, 2005

JORGE A. LOPEZ, Appellant, vs. THE STATE OF FLORIDA, Appellee.

** ** ** ** ** ** LOWER TRIBUNAL NO. 95-30505 CASE NO. 3D05-2051

Opinion filed December 14, 2005. An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, Mark King Leban, Judge. Jorge A. Lopez, in proper person. Charles J. Crist, Jr., Attorney General, for appellee.

Before LEVY, SHEPHERD, and ROTHENBERG, JJ.

ROTHENBERG, Judge. The defendant, Jorge A. Lopez, appeals an order summarily denying his motion to correct illegal sentence filed under

Florida Rule of Criminal Procedure 3.800(a).

We reverse and

remand for further proceedings consistent with this opinion. Pursuant to Florida Rule of Appellate Procedure

9.141(b)(2)(D), if a trial court summarily denies a defendant's motion for postconviction relief filed under Florida Rules of Criminal Procedure 3.800(a), 3.850, or 3.853, this court's

standard of review is as follows:

"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." Because the trial court has failed to attach portions

of the record that conclusively demonstrate that the defendant is entitled to no relief, we reverse and remand for a hearing or for the trial court to attach record excerpts which conclusively demonstrate that the defendant is not entitled to any relief. Moreover, upon remand, the trial court may review and correct the order under review as it appears to be internally

inconsistent.

The form order provides that the trial court

found that the defendant's pro se motion was "sufficient . . . to support the relief prayed," but the trial court then denied the motion without a hearing. Reversed and remanded for further proceedings consistent herewith.

2

Download 05-2051 LOPEZ V. STATE.pdf