HERBY LUMA, A/K/A RONET BASTIEN, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The court reversed the trial court's order striking Luma's motion to correct an illegal sentence because the record did not conclusively show he was not entitled to relief, and remanded for further proceedings with instructions that any future summary denial must include record excerpts demonstrating no relief is warranted.
A trial court's order striking a pro se motion to correct an illegal sentence must be reversed on appeal when the appellate record fails to conclusively demonstrate that the movant is not entitled to relief.
[1] On appeal from summary denial of post-conviction relief, the appellate court must reverse unless the record conclusively shows the movant is not entitled to relief.
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Join FLexlaw to unlock all legal intelligenceHerby Luma, proceeding pro se, filed a motion to correct an illegal sentence under Florida Rule of Criminal Procedure 3.800(a). The trial court struck…
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Herby Luma appeals an order striking his motion to correct an illegal sentence under Florida Rule of Criminal Procedure 3.800(a). The trial court’s basis for striking the motion was that it had precluded him from filing further pleadings without an authorized signature from a member of the Florida Bar. However, while the court below issued a rule to show cause why Luma should not be prohibited from the filing of further pro se motions attacking his convictions and sentences in this case, neither the scant appellate record before us nor the lower court docket conclusively confirm that the lower court ever entered an order prohibiting him from such pro se filings.
*227We treat the instant appeal of the order striking Luma’s motion as an appeal from the summary denial of a motion for post-conviction relief. See Cruz v. State, 981 So.2d 1272, 1273 (Fla. 3d DCA 2008). On appeal from a summary denial, this court must reverse unless the postconviction record, see Fla. R. App. 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). Because the record now before us fails to make the required showing, we reverse the order now before us and remand for further proceedings. If the trial court again enters an order summarily denying the postconviction motion, the court shall attach record excerpts conclusively showing that Luma is not entitled to any relief.
Reversed and remanded for further proceedings.
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Herby Luma v. State (Fla. 3d DCA 2019)…gs related to his convictions in lower tribunal case number F97-29656. court appears not to have followed through with a final order. This led to two more appeals to this Court in Luma v. State, 237 So. 3d 1126 (Fla. 3d DCA 2018) and Luma v. State, 208 So. 3d 226 (Fla. 3d DCA 2016). If Luma does not demonstrate good cause, we will direct the Clerk of this Court not to accept any such filings unless they have been reviewed by, and bear the signature of, a licensed attorney in good standing with the Florida…
Authorities Cited
- C.M. and F.M. v. Dep't of Child. & Families, 981 So. 2d 1272 (Fla. 1st DCA 2008)