VETRONY LIVINGSTON, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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A motion to correct an illegal sentence is facially insufficient if it does not affirmatively allege that court records demonstrate entitlement to relief.
Appellant sought to correct an illegal sentence, arguing he did not qualify as a prison releasee reoffender. The trial court summarily denied the moti…
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VILLANTI, Judge.
Vetrony Livingston appeals the summary denial of his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse and remand with instructions.
Livingston claims that he does not qualify as a prison releasee reoffender because he did not commit his new offense within three years of being released from a state correctional facility. See § 775.082(9)(a)(l), Fla. Stat. (2001). However, Livingston’s motion is facially insuffi- dent because it did not affirmatively allege that the court records demonstrate on their face an entitlement to relief. See Fla. R.Crim. P. 3.800(a); see also Tyson v. State, 852 So. 2d 428, 429 (Fla. 2d DCA 2003).
It appears that the postconviction court relied on exhibits prepared by the Department of Corrections after Livingston was sentenced as a basis for summarily denying the motion on its merits. It is unclear whether the exhibits were part of the trial court record in the proceeding in which the challenged sentence was imposed. Nevertheless, because Livingston’s motion is facially insufficient, the postconviction court should have dismissed the motion, rather than deny it on its merits. Therefore, we reverse the order denying the rule 3.800(a) motion and remand for entry of an order of dismissal, which shall be without prejudice to any right Livingston may have to file a facially sufficient motion pursuant to rule 3.800(a) or a timely and facially sufficient motion pursuant to rule 3.850.
Reversed and remanded with instructions.
SALCINES and DAVIS, JJ., Concur.
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Watson v. State, 34 So. 3d 806 (Fla. 2d DCA 2010)…ed. WHATLEY and LaROSE, JJ„ Concur. . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). . We note that to deny a motion suggests that the postconviction court has considered the claims on their merits. See Livingston v. State, 944 So. 2d 1254 (Fla. 2d DCA 2006). There is no indication, however, that this postconviction court considered these claims on their merits. There is also nothing in the record to indicate that the postconviction court considered the facial sufficiency of these cla…
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McCLAIN v. State, 157 So. 3d 528 (Fla. 1st DCA 2015)…der and remand for entry of an order of dismissal without prejudice to any right Appellant may have to file a facially sufficient Rule 3.800(a) motion or a timely and facially sufficient motion pursuant to Rule [*530] 3.850. See Livingston v. State, 944 So. 2d 1254,1255 (Fla. 2d DCA 2006). MAKAR and BILBREY, JJ., concur.…
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Dixon v. State, 949 So. 2d 1209 (Fla. 2d DCA 2007)…fectuate the intent of his plea. However, Dixon’s motion is facially insufficient because it did not affirmatively allege that the court records demonstrate on their face an entitlement to relief. See Fla. R.Crim. P. 3.800(a); Livingston v. State, 944 So. 2d 1254 (Fla. 2d DCA 2006); Stathas v. State, 852 So. 2d 881 (Fla. 2d DCA 2003). Therefore, the postconviction court should have dismissed the motion, rather than deny it on its merits. See Livingston, 944 So. 2d at 1254; Poole v. State, 935 So. 2d 643, 644…
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