Florida Criminal Law Opinions

An appeal from the Circuit Court for Okaloosa County, Thomas T. Remington, Judge.

Nancy Daniels, Public Defender, M. J. Lord, Assistant Public Defender, Office of the Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, Jennifer J. Moore, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.

PER CURIAM.

William Joseph Napoleon, Jr., appeals his judgment and conviction for crimes associated with possession of a firearm, contending that the trial court erred by denying his motion to suppress. We reverse and remand.

Okaloosa County Sheriff’s Deputy Steven Weyer pulled a vehicle over for cutting suddenly in front of his vehicle and for an inoperative license-plate light. He approached the vehicle and saw two females in front and three males in back, one of whom was appellant Napoleon. Deputy Weyer observed tattoos on Napoleon’s cheeks of the state of California and the state of Florida, and that two of the men in the back seat were wearing matching bandannas and clothing, which raised his concern about “possible gang activity.” He asked for everyone’s i.d.’s, and noticed that the three in the back weren’t wearing seat belts although some appeared to be under 18.¹ None of the men had i.d.

Weyer said they were all “extremely nervous” and uneasy, and that he’d had previous experience with the driver “dealing with felony narcotics which goes along hand in hand with gang activity.” At that point, which was 9:32 p.m., he worried about his security, because he was alone on a “dark, lonely road” with possible gang members “outnumbered five to one.” Deputy Weyer said he wanted to conduct field interviews of the occupants to determine whether they were gang members, and he didn’t want to conduct the interviews, write out a citation, or walk his canine around the car until he had backup, so he called a street-crimes unit. After two or three officers arrived, Weyer walked his dog around the car, which took about a minute, and the dog indicated a narcotic odor in the car, so at 9:50, Weyer detained the vehicle occupants for a narcotics investigation. The officers found marijuana, scales, and baggies, and Napoleon was carrying a firearm and crack cocaine. Deputy Weyer never did issue a citation to the driver.

This court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the determination of the trial court. Application of the law to the facts is reviewed de novo. Pagan v. State, 830 So. 2d 792, 806 (Fla. 2002). The state claims this case involved only a traffic stop with no additional detention. Because Deputy Weyer never issued a citation to the driver, the occupants’ detention for 20 minutes after the initial traffic stop did not occur within the context of the traffic stop but instead required a founded suspicion of articulable criminal activity, which was not shown. Accordingly, the trial court erred by denying Napoleon’s motion to suppress.

When a driver is stopped for a traffic infraction and there is no suspicion of criminal activity, the officer may detain the occupants no longer than the time it takes to write a citation. See Ill. v. Caballes, 543 U.S. 405, 407 (2005); Hines v. State, 737 So. 2d 1182, 1185 (Fla. 1st DCA 1999). Use of a narcotics dog to sniff a vehicle does not constitute a search or seizure, and may be conducted during a consensual encounter or traffic stop. See Caballes at 408-09; Holden v. State, 877 So. 2d 800 802 (Fla. 5th DCA 2004). Accordingly, when an officer is still writing a citation during a traffic stop when a backup officer or canine unit arrives, the lapse of time is generally not unreasonable. See, e.g., Sanchez v. State, 847 So. 2d 1043 (Fla. 4th DCA 2003); Sands v. State, 753 So. 2d 630 (Fla. 5th DCA 2000).

In contrast, in Sparks v. State, 842 So. 2d 876 (Fla. 2d DCA 2003), the deputy had finished writing a citation for driving with a broken headlight before the canine unit arrived twenty minutes after the initial stop, and the officer had neither given Sparks the citation nor told him he could go. “Accordingly, the time between the completion of the writing of the citation and the arrival of the canine unit was an illegal detention.” Id. at 877. In Williams v. State, 869 So. 2d 750 (Fla. 5th DCA 2004), an officer stopped Williams for a traffic violation and issued a citation 35 minutes later, then conducted a dog sweep, leading to Williams’ arrest. The court found the time to be unreasonably long, and even if it had been reasonable, the officer issued the citation before commencing the dog sniff, rendering the detention for the sniff illegal.

In a comparable case, Nulph v. State, 838 So. 2d 1244 (Fla. 2d DCA 2003), the officer pulled driver Peter Dion over for careless driving and called in a canine unit because he suspected Dion of drug activity. Candice Nulph was a passenger. The officer took 15 minutes to run the license, registration, and warrant checks on Dion, which were negative, and then busied himself until the canine unit arrived two minutes later. The stop had by then lasted 20 minutes. “The detective testified that he had made a conscious decision not to start writing a citation because he wanted to first wait for Officer Taylor.” Id. at 1246. The canine found drugs on Nulph. The officer never did issue a citation to Dion. The court concluded that the detective detained the vehicle “based on a suspicion of drug possession rather than for the issuance of a citation for a traffic infraction,” which was improper because the officer had no founded suspicion that Dion or Nulph had committed, were committing, or would commit a crime. Id. at 1245-46. “Although we cannot say that the detention was unreasonably long had the detective decided at the outset to issue a citation, that is not what occurred.” Id. at 1246.

Similarly, in the case at bar, Deputy Weyer said he waited for backup in order to write a citation, but he never did issue one. The evidence shows that what he really intended was to detain the occupants until he could conduct the dog sniff and field interview the possible gang members.² Because the traffic stop had evolved into an investigatory stop, Weyer needed a founded suspicion of criminal activity to detain the vehicle. See Morrow v. State, 848 So. 2d 1290 (Fla. 2d DCA 2003).

The second level of police-citizen encounter is reached when there is a reasonable or founded suspicion that criminal activity may be afoot (that the person has committed, is committing, or is about to commit a crime), whereupon a person may be detained and the consensual encounter, traffic stop, or field interview becomes an investigatory stop. See Golphin v. State, 945 So. 2d 1174, 1180 (Fla. 2006), cert. denied, 128 S. Ct. 40 (2007); Beckham v. State, 934 So. 2d 681, 683 (Fla. 2d DCA 2006). The officer must have an objective and particularized basis for the detention, rather than an inchoate suspicion or hunch. See Tillman v. State, 934 So. 2d 1263, 1273 (Fla. 2006). Behavior that is merely “suspicious but not demonstrably or conceivably criminal” does not constitute founded suspicion for an investigatory stop. See, e.g., Hills v. State, 629 So. 2d 152, 156 (Fla. 1st DCA 1993). Whether the officer had reasonable suspicion depends upon the totality of the circumstances in light of the officer’s background and experience, and may include an evaluation of the physical appearance and behavior of the individual. See Moore v. State, 561 So. 2d 625, 626 (Fla. 1st DCA 1990); State v. Russell, 659 So. 2d 465, 467-68 (Fla. 3d DCA 1995).

Deputy Weyer’s suspicion regarding gang activity was a hunch at best. He said two of the men in the back seat had matching clothing and bandannas, which are associated with gangs in general, but did not elaborate upon this observation at all. He did not say Napoleon’s tattoos were a gang insignia. No one from the backup unit testified about the indicia of gang membership in Okaloosa County. See Baggett v. State, 531 So. 2d 1028, 1030 (Fla. 1st DCA 1988) (officer’s testimony that he stopped the defendant because it was 1:45 a.m., he was walking in an area of recent break-ins, he acted nervous, he was wearing dark clothing, and he looked young and could have been a runaway, did not support an investigatory stop and frisk, when “the record contains no evidence of objective facts that indicate Baggett was a runaway” and the other reasons were legally insufficient). The driver’s prior drug activity did not provide a well-founded suspicion of gang activity. See Beckham, 934 So. 2d at 684.

The cases the state cites to support the 20-minute delay did not involve traffic stops or consensual encounters but instead investigatory detentions, which may extend for a reasonable time necessary to obtain a narcotics dog. See U.S. v. Hardy, 855 F.2d 753 (11^th Cir. 1988); Cresswell v. State, 564 So. 2d 480 (Fla. 1990); Rogers v. State, 586 So. 2d 1148 (Fla. 2d DCA 1991). As shown above, the state did not establish the facts necessary to support a founded suspicion for an investigatory detention.

REVERSED and REMANDED with directions to the trial court to grant the motion to suppress.

BARFIELD, VAN NORTWICK, and PADOVANO, JJ., CONCUR.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED.

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Notes:

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An appeal from the Circuit Court for Santa Rosa County, Ronald V. Swanson, Judge.

Nancy A. Daniels, Public Defender, and Jamie Spivey, Assistant Public Defender, Tallahassee, for Appellant.

Bill McCollum, Attorney General, and Philip W. Edwards, Assistant Attorney General, Tallahassee, for Appellee.

WOLF, J.

Appellant challenges his conviction for sexual battery on a child under 12 years of age. He raises one issue on appeal, whether the trial court properly denied appellant’s motion for judgment of acquittal where the victim could not point appellant out in court. We find that the circumstantial evidence concerning the identity of the perpetrator was sufficient to support the conviction and affirm.

Appellant, Robert Earl Fowler, was charged by information on November 29, 2006, for one count of sexual battery on a child under 12, per section 794.011(2)(a), Florida Statutes (2004), and one count of lewd and lascivious molestation on a child under 12, per section 800.04(5)(b), Florida Statutes (2004). The alleged conduct giving rise to both charges occurred sometime between August 29, 2004, and December 29, 2005.

At appellant’s trial, G.J., who was 6 years old, testified she was watching television in her mother’s bedroom when a man named “Earl” entered the room and locked the door. She testified that he then “put his private part in my mouth.” Earl referred to his private part as a “doughnut.” G.J. did not tell her mother about the incident immediately because she was scared. The record demonstrates G.J. was about 4 years old at the time of the alleged crime.

G.J.’s mother, Janifer Barnes, lived with appellant, who goes by “Earl,” from 2003 to 2004. Barnes, testifying for the State, pointed to appellant when asked to identify Robert Earl Fowler. Barnes said that she had observed appellant discipline G.J. and felt that his methods were inappropriate, but she had not suspected sexual abuse. Barnes had also noticed that G.J. often flinched when appellant entered the room. After noticing black and blue marks on G.J.’s bottom, Barnes took G.J., moved out, and subsequently married Mr. Frederick “Freddy” Barnes, whom G.J. calls “Daddy.” The two were still married at the time of trial.

Both Barnes and her husband testified that G.J. entered the Barnes’ bedroom one morning and, upon seeing the married couple in bed and under the covers (though not engaged in sexual activity), said, “I know what y’all are doing.” When they asked her what she thought they were doing, G.J. responded, “I think you’re sucking his doughnut.” Neither Barnes nor her husband had referred to genitalia as a “doughnut.” G.J. told her mother she called it a doughnut because “that’s what Earl called it.” At an interview with the Child Protection Team, the video of which was presented as evidence to the jury, G.J. again identified “Earl” as the man who entered her room. G.J. continued to identify Earl as the perpetrator at trial, stating that Earl “was mean” and “put his private part in my mouth.”

Although appellant goes by his middle name, Earl, G.J. was unable to point him out in court. Counsel for the State asked the girl to “[s]tand up and look around and tell me if you see Earl.” After looking around, G.J. answered, “No.” The court later observed that G.J.’s view of appellant “was not impeded and she looked in [appellant’s] direction.” G.J. had behavioral problems which, in Barnes’ opinion, worsened during the time she and G.J. lived with appellant. Barnes testified that no men besides appellant had access to G.J. when she was not around. On rebuttal for the State, Ms. Turman, Barnes’ cousin, also testified that prior to living with appellant, G.J. was a happy child who, by the end of her mother’s relationship, flinched or cried when appellant came near her. Turman further testified that G.J. would put her hands up to protect her head when appellant was close to her.

Appellant argues on appeal that G.J. could not identify appellant as “Earl” and that, if G.J. implicated anyone, it was Frederick Barnes. In support, appellant points to evidence presented by the State, the videotaped interview between G.J. and a member of the Child Protection Team, which was played for the jury. The transcript reads:

PROTECTION TEAM: About Earl. Tell me about Earl. Who is Earl?

[G.J.]: My momma’s husband.

PROTECTION TEAM: . . . Your momma’s husband now or your momma’s husband before?

[G.J.]: (inaudible).

. . . .

PROTECTION TEAM: When did you tell [your mother]? [G.J.]: In the morning. In the morning when we woke up, and I saw Earl in bed . . . .

Elsewhere on the videotape, however, G.J. clearly distinguished “Earl” from Frederick Barnes by stating, when asked if Earl still lived with her, that her mother did not like him anymore. Also, at trial, G.J. could not remember whether she had ever lived in the same house with Earl, yet she stated she was currently living with Frederick Barnes. Upon examination at trial, the prosecutor asked G.J., “Did Freddy Barnes ever do anything bad to you like Earl did?” and “Did anyone else ever do anything bad to you like Earl did?” G.J. replied, “No, sir,” to both questions.

The jury returned a guilty verdict on both counts, and appellant was sentenced to life imprisonment with no eligibility for parole.

The trial court’s denial of a motion for judgment of acquittal is reviewed de novo. Baugh v. State, 961 So. 2d 198, 204 (Fla. 2007); Jones v. State, 790 So. 2d 1194, 1196 (Fla. 1st DCA 2001). The test upon review is not whether the evidence proves guilt beyond a reasonable doubt; instead, the appellate court considers only whether the jury could reasonably determine guilt given the evidence presented. State v. Powell, 636 So. 2d 138, 142 (Fla. 1st DCA 1994), review dismissed, 645 So. 2d 454 (Fla. 1994).

As to the evidence presented, this court has explained that: When a defendant moves for a judgment of acquittal, he “admits not only the facts stated in the evidence adduced, but also admits every conclusion favorable to the adverse party that a jury might fairly and reasonably infer from the evidence.”

Criner v. State, 943 So. 2d 224, 225 (Fla. 1st DCA 2006) (quoting Lynch v. State, 293 So. 2d 44, 45 (Fla. 1974)). Thus, a “judgment of acquittal should only be granted when the jury cannot reasonably view the evidence in any manner favorable to the opposing party.” Id.

Appellant was adjudicated guilty of violating sections 794.011(2)(a) and 800.04(5)(b), Florida Statutes. To prove a violation of either law, the State must show that the proscribed conduct occurred and that the appellant was the perpetrator. §§ 494.011(2)(a), 800.04(5)(b), Fla. Stat.

Appellant’s motion for judgment of acquittal was based on the belief that the State failed to satisfy the second requirement, identification of the defendant. Appellant draws attention to the fact that G.J. was given the opportunity at court to identify the perpetrator, but could not point him out.

There is no binding authority addressing a situation in which a primary child witness is willing and able to testify against the defendant, all-the-while referring to him by name, yet is still unable to point him out in court when asked. Cases invariably involve the admissibility of out-of-court identifications in several contexts. See, e.g., Dep’t of Health & Rehabilitative Servs. v. M.B., 701 So. 2d 1155, 1156 (Fla. 1997) (involving an in-court recantation of allegations); State v. Freber, 366 So. 2d 426, 428 (Fla. 1978) (addressing an inability to recognize an unfamiliar defendant); State v. Contreras, 979 So. 2d 896 (Fla. 2008) (discussing an inability to testify altogether).

However, case law does establish that a witness’s ability to point the defendant out in court is not a necessary component of the case. See, e.g., Freber, 366 So. 2d at 428; C.C., Jr. v. State, 943 So. 2d 905, 905 (Fla. 5th DCA 2006). The identity of the perpetrator can therefore be inferred from circumstantial evidence, and the lack of direct, in-court identification, goes to the strength of the case. See C.C., 943 So. 2d at 905-06 (”[T]he trier of fact chose to believe the victim [despite the lack of in-court identification] . . . and we cannot substitute our judgment for the fact-finder’s on issues of witness credibility.”).

The supreme court in Freber noted that requiring witnesses to physically point the defendant out in court would “encourage defendants to change their appearance before trial to avoid being identified in court.^* Without this proof that the person previously identified by the witness was the defendant, conviction would in some instances be impossible.” 366 So. 2d at 428. Moreover, in the context of child molestation cases, the court has noted the problem of the “child sexual abuse accommodation syndrome,” under which the child recants his or her allegations in an attempt to restore peace in the family. See M.B., 701 So. 2d at 1156.

Other jurisdictions have similarly recognized that the identity of a defendant can be established by inference and circumstantial evidence. The Eleventh Circuit, for instance, affirmed the conviction of two defendants who had the same names and fingerprints of the suspected criminals, but who were apparently not pointed out at trial. United States v. Chambliss, No. 07-13511, 2008 WL 565348 (11th Cir. March 4, 2008). There, the court found that “the jury could reasonably infer that the suspect `Michael Chambliss’ was the same Chambliss who was in court,” based on the circumstantial evidence presented at trial. Id. at *1.

The Fifth Circuit, while stating that “a witness need not physically point out a defendant so long as the evidence is sufficient to permit the inference that the person on trial was the person who committed the crime,” reversed such a conviction where an unseen perpetrator used the defendant’s name in letters and over the phone to commit fraud. United States v. Darrell, 629 F.2d 1089, 1091 (5th Cir. 1980). In Darrell, there was no corroborating evidence to connect the defendant to the individual using the defendant’s name — nothing aside from the use of the name. Id. Thus, the court found the inference of defendant’s guilt to be impermissible. Id. The court has also noted, however, that where there is at least some circumstantial evidence, the conviction should be upheld. See United States v. Ferguson 211 F.3d 878, 884 (5th Cir. 2000) (finding that uncertain in-court identification combined with out-of-court identification and possession of same type of firearm was enough to permit the inference of guilt).

Finally, a Texas intermediate court recently elaborated on the relative importance of an in-court identification:

When a defendant contests the identity element of the offense, we are mindful that identity may be proven by direct evidence, circumstantial evidence, or even inferences. Although a direct in-court identification is the preferred procedure, where the circumstances do not indicate the likelihood of confusion, that type of identification is not required. If there is no in-court identification of the perpetrator’s identity elicited from trial witnesses, no formalized procedure is required for the State to prove the identity of the accused . . . [T]he absence of an in-court identification is merely a factor for the jury to consider in assessing the weight and credibility of the witnesses’ testimony.

Wiggins v. State, No. 06-07-00117-CR, 2008 WL 1986617, at *3 (Tex. Crim. App. May 9, 2008) (citations omitted).

Viewing the evidence in the light most favorable to the State, there was enough evidence for the jury to find that appellant was the “Earl” who committed sexual battery and lewd and lascivious molestation on G.J.

Although G.J. was unable to point to appellant in court, G.J. continually, both in court and out of court, referred to the man who put his “doughnut” in her mouth as “Earl,” the name by which appellant is known. Her mother and stepfather testified that they never referred to genitalia as a “doughnut,” and Earl was the source of the term. G.J.’s interview with the CPT contained the same allegations against Earl. G.J. also described the encounter with “Earl” at trial. Appellant, named Earl, was living with G.J. and had sole access to her for a period of time, according to G.J.’s mother. No other “Earl” would have had this access. Accepting this evidence as required for purposes of review, it is certainly reasonable to determine that appellant, whose middle name is Earl and who routinely went by the name “Earl,” was the man described by G.J. as engaging in the proscribed conduct.

For the foregoing reasons, we AFFIRM.

ALLEN and POLSTON, JJ., CONCUR.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED.

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Notes:

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3.850 Appeal from the Circuit Court for Orange County, Stan Strickland, Judge.

Antonio T. Neal, Bowling Green, Pro Se.

Bill McCollum, Attorney General, Tallahassee, and Pamela J. Koller, Assistant Attorney General, Daytona Beach, for Appellee.

PER CURIAM.

Antonio T. Neal appeals the trial court’s order summarily denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse.

Neal pled no contest to charges of attempted robbery with a firearm and kidnapping. He now asserts that his codefendant and the victim have provided affidavits that demonstrate his innocence. The trial court summarily denied Neal’s motion, concluding that he did not “explain how or why this alleged newly discovered evidence was not known to him or counsel at the time he entered his plea or why it could not have been discovered through due diligence.”

The trial court is correct in its assessment of Neal’s pleading deficiency. However, under Spera v. State, 971 So. 2d 754 (Fla. 2007), we are compelled to reverse. As we explained in Pierre v. State, 973 So. 2d 547, 548 (Fla. 5th DCA 2008):

The court in Spera held that a post-conviction motion should not be denied because of a pleading defect if that pleading defect could be remedied by a good faith amendment to the motion. The court further held that the proper procedure when a motion is legally insufficient is for the trial court to strike the motion with leave to amend within a reasonable period. Id.; see also Bryant v. State, 901 So. 2d 810 (Fla. 2005); Keevis v. State, 908 So. 2d 552 (Fla. 2d DCA 2005). In this case, it is not apparent that the defects in the motion could not be remedied, depending on the facts. Accordingly, we are bound to reverse and remand for the trial court to strike the motion with leave to amend within a specified time consistent with the parameters identified in Spera.

(Footnote omitted); see Dinkins v. State, 974 So. 2d 555 (Fla. 5th DCA 2008). Because it is not apparent that the defects in Neal’s claim cannot be remedied by amendment, we reverse and remand with instructions that the trial court strike Neal’s motion with leave to amend within a reasonable time period.

REVERSED AND REMANDED.

PLEUS, ORFINGER and TORPY, JJ., concur.

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Petition for Writ of Habeas Corpus, A Case of Original Jurisdiction.

Robert Wesley, Public Defender, and Heiko Moenckmeier, Assistant Public Defender, Orlando, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.

GRIFFIN, J.

The juvenile petitioner has filed a Petition for Writ of Habeas Corpus, asserting entitlement to immediate release from secure detention, challenging an order of the trial court finding five instances of criminal contempt and imposing a total sentence of forty-five days. The petitioner asserts that pursuant to section 985.037, Florida Statutes (2007), and J.D. v. State, 954 So. 2d 93 (Fla. 5th DCA 2007), the trial court was prohibited from imposing consecutive periods of detention for the separate findings of contempt. We disagree and deny the petition.

On April 15, 2008, five different show cause orders issued against petitioner in three separate cases arising out of multiple failures to appear. A contempt hearing was held six days later, on April 21, 2008, on all of the five orders. After determining the petitioner was in direct contempt for five separate violations of court orders, the trial court sentenced her to five days of secure detention to run consecutively on three of the orders (failure to appear for arraignments scheduled for December 21, 2007, January 4, 2008, and January 18, 2008, in case nos. CJ07-8591, CJ07-8926 and CJ07-4847), because they were deemed the “first offense” for each respective case. The court then sentenced her to two consecutive fifteen-day sentences for the two subsequent contempts (failure to appear at trial in case nos. CJ07-8591 and CJ07-8926 and failure to remain for a hearing in case nos. CJ07-8591, CJ07-8926 and CJ07-4847), which were determined to be “second offenses.”

Consequently, the petitioner filed the instant petition, claiming she is entitled to immediate release due to impermissible stacking of the sentences. She relies on this Court’s decision in J.D., 954 So. 2d 93, which held that consecutive fifteen-day sentences for five separate violations of a “behavior order” violated the statutory limitations on juvenile sentences. See § 985.216, Fla. Stat. (2007). The State responded that the sentences imposed are permissible, distinguishing this case from the facts of J.D., and contending that this case is more factually in line with the First District’s case, K.Q.S. v. State, 975 So. 2d 536 (Fla. 1st DCA 2008). We agree with the State that J.D. does not apply here.

Unlike J.D., which involved the juvenile’s multiple violations of a single “behavior order,” the petitioner in this case was held in direct contempt of court, based on five different show cause orders arising from multiple failures to appear in three different cases. As the State maintains, the situation in J.D. was akin to a defendant’s violation of several different conditions of a probation order for which one revocation is imposed; this case involves discreet instances of contempt.

The First District in K.Q.S. opined that, “[a]lthough section 985.037 limits a sentence for a second or subsequent offense to fifteen days, nothing in the statute states that multiple instances of direct contempt cannot be separately punished with consecutive sentences of fifteen days confinement for each offense. In fact, the statute specifically states that a sentence of fifteen days may be imposed for a `second or subsequent’ offense.” K.Q.S., 975 So. 2d at 537. We agree with K.Q.S. as it pertains to these facts.¹

Because the trial court was not prohibited from imposing consecutive terms of secure detention for multiple instances of direct contempt of court, pursuant to section 985.037, the petitioner has no right to immediate release.

PETITION DENIED.

PLEUS and LAWSON, JJ., concur.

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Notes:

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An appeal from the Circuit Court for Duval County. L. P. Haddock, Judge.

Jerry Lee, pro se, Appellant.

Bill McCollum, Attorney General, and Shelly A. R. Chichester, Assistant Attorney General, Tallahassee, for Appellee.

PER CURIAM.

Appellant challenges the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Appellant claims that he was improperly sentenced as a habitual violent felony offender based on a prior conviction for possession of a firearm by a convicted felon. Possession of a firearm by a convicted felon is not a qualifying offense for habitual violent felony offender sentencing. See sect; 775.084, Fla. Stat. (1996). The trial court summarily denied appellant’s motion without providing record attachments conclusively refuting his claim.

We therefore reverse the trial court’s summary denial of the appellant’s motion to correct an illegal sentence and remand for the trial court to attach portions of the record that conclusively refute the appellant’s claim or to re-sentence the appellant as the record dictates.

REVERSED AND REMANDED.

WOLF, LEWIS, and ROBERTS, JJ., CONCUR.

NOT FINAL UNTIL TIME EXPIRES TO FILE MOTION FOR REHEARING AND DISPOSITION THEREOF IF FILED.

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