DEROY CARTER, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court held that the trial court erred in summarily denying the motion because the record did not conclusively show the appellant was not entitled to relief.
The appellant was sentenced to drug offender probation despite not being convicted of a chapter 893 offense. The trial court summarily denied his moti…
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Deroy Carter appeals a summary denial of his Florida Rule of Criminal Procedure 3.800(a) motion to correct an illegal sentence claiming that he was improperly sentenced to drug offender probation despite the fact that none of the charged offenses were related to chapter 893, Florida Statutes (2010). On appeal from a summary denial, this Court must reverse unless the post conviction record, see Fla. RApp. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See, Fla. R.App. P. 9.141(b)(2)(D).
In its order, the trial court found that the “[defendant entered a bargained-for exchange in which he agreed to drug offender probation that was lawful and appropriate.”1 However, the trial court failed to include the portion of the record that supports this conclusion.2
Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. Jf the trial court again enters an order summarily denying the post conviction motion, the court shall attach record excerpts conclusively showing that Carter is not entitled to any relief.
Reversed and remanded for further proceedings.
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McBURNETT v. State, 188 So. 3d 972 (Fla. 5th DCA 2016)…rom a summary denial of a motion to correct illegal sentence, an appellate court must reverse unless the postconviction record shows conclusively that appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(A), (b)(2)(D); Carter v. State, 104 So. 3d 381, 382 (Fla. 3d DCA 2012). Accordingly, we affirm that portion of the order finding that Appellant’s twelve-year sentence is lawful, but reverse and remand for further proceedings regarding Appellant’s youthful offender designation. If the court agai…
Authorities Cited
- Ackermann v. State, 962 So. 2d 407 (Fla. 1st DCA 2007)