FOSTER LEE BROWN, APPELLANT,
v.
STATE OF FLORIDA, APPELLEE
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Foster Lee Brown appealed the summary denial of his Rule 3.800(a) motion for postconviction relief challenging the imposition of a habitual felony offender (HFO) designation two days after his original sentencing. The court affirmed the denial of his first and third claims but reversed as to his second claim, finding the trial court failed to attach record materials refuting his cognizable double jeopardy claim.
The court reversed the trial court's denial of Brown's second claim. Post-sentencing amendment of a judgment to impose an HFO designation constitutes a double jeopardy violation cognizable under Rule 3.800(a). When a defendant states a facially sufficient claim under Rule 3.800(a), the trial court must attach records to its denial order that conclusively refute the claim; failure to do so requires reversal.
[1] A post-sentencing amendment of a judgment to impose a habitual felony offender designation constitutes a double jeopardy violation if apparent from the face of the record…
[2] A trial court must attach records that conclusively refute a defendant's entitlement to relief when denying a facially sufficient postconviction claim cognizable under ru…
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Join FLexlaw to unlock all legal intelligence“Once a sentence has been imposed and the person begins to serve the sentence, that sentence may not be increased without running afoul of double jeopardy principles.”
Establishes the foundational double jeopardy principle protecting against post-sentencing sentence increases.
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Join FLexlaw to unlock all legal intelligenceBrown was originally sentenced to 30 years for aggravated battery. Two days later, he was brought back to court and re-sentenced to 30 years as a habi…
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Foster Lee Brown appeals the summary denial of his motion seeking postconviction *364relief brought pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm, without comment, the postconviction court’s denial of the appellant’s first and third claims. However, as to his second claim, we reverse.
“Once a sentence has been imposed and the person begins to serve the sentence, that sentence may not be increased without running afoul of double jeopardy principles.” Ashley v. State, 850 So.2d 1265, 1267 (Fla.2003) (citing Lippman v. State, 633 So.2d 1061 (Fla.1994); Clark v. State, 579 So.2d 109 (Fla.1991); and N.H. v. State, 723 So.2d 889 (Fla. 5th DCA 1998)). The post-sentencing amendment of a judgment to impose an HFO designation is a double jeopardy violation that can be remedied pursuant to rule 3.800(a) if it is apparent from the face of the record. State v. Akins, 69 So.3d 261, 268-71 (Fla.2011). Further, where a defendant has stated a facially sufficient claim that is cognizable pursuant to rule 3.800(a), a trial court is required to attach records to an order of denial which conclusively refute his entitlement to relief. See Thomas v. State, 634 So.2d 175, 177 (Fla. 1st DCA 1994).
In the instant case, the appellant argued in his second claim that he was originally sentenced to 30 years for the charge of aggravated battery, and then was brought back to court two days later to be sentenced on this charge to 30 years as a habitual felony offender. He cited specific documents in the record to support his claim. The trial court denied this claim by stating that the appellant had failed to demonstrate a basis for relief. However, the appellant’s claim was cognizable pursuant to rule 3.800(a) and facially sufficient. Further, as the State concedes in its response to this Court’s Toler 1 order, the trial court failed to attach documents to its order which refuted the appellant’s claim.
Accordingly, we reverse the trial court’s order denying the appellant’s rule 3.800(a) motion as to the second claim for relief. On remand, should the trial court again conclude that appellant’s claim lacks merit, it shall attach to its order the portions of the record conclusively refuting that claim. Otherwise, it shall grant the relief requested.
AFFIRMED IN PART; REVERSED IN PART AND REMANDED.
CLARK, MAKAR, and OSTERHAUS, JJ., concur.
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Citator
Cited By
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Obie Dewayne Holliman v. State, 152 So. 3d 783 (Fla. 1st DCA 2014)…his court has consistently reversed and remanded for the trial court either to attach to its order the portions of the record refuting the appellant’s claim or to grant the requested relief. Fla. R. App. P. 9.141(b)(2)(d); see, e.g., Brown v. State, 132 So. 3d 363 (Fla. 1st DCA 2014); Cummings v. State, 106 So. 3d 33 (Fla. 1st DCA 2013); Higginbotham v. State, 69 So. 3d 1041 (Fla. 1st DCA 2011). But see Casteel v. State, 141 So. 3d 624 (Fla. 4th DCA 2014) (“We do not accept the State’s concession. The Florida…
Authorities Cited
- Columbus Rickey Ashley v. State, 850 So. 2d 1265 (Fla. 2003)
- Toler v. State, 493 So. 2d 489 (Fla. 1st DCA 1986)
- Lippman v. State, 633 So. 2d 1061 (Fla. 1994)
- Clark v. State, 579 So. 2d 109 (Fla. 1991)
- State v. Akins, 69 So. 3d 261 (Fla. 2011)
- Am. Sightseeing Tours, Inc. v. Gerda Jackson, 634 So. 2d 175 (Fla. 3d DCA 1994)
- Thomas v. State, 634 So. 2d 175 (Fla. 1st DCA 1994)
- N.H. v. State, 723 So. 2d 889 (Fla. 5th DCA 1998)