Florida Criminal Law Opinions

Carlos J. Martinez, Public Defender, and Shannon P. McKenna, Assistant Public Defender, for appellant.

Bill McCollum, Attorney General, and Natalia Costea, Assistant Attorney General, for appellee.

Appeals under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, John W. Thornton, Judge.

Not final until disposition of timely filed motion for rehearing.

Before COPE, SUAREZ and SALTER, JJ.

Opinion

COPE, J.

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This is an appeal of order denying a motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a), and a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. We remand for further proceedings.

In his Rule 3.800(a) motion, the defendant maintains that his mandatory minimum seven-year sentence is illegal. The defendant’s point is well taken.

The defendant was charged with trafficking in cocaine in an amount of 400 grams.¹ In 2006, the defendant entered into a plea agreement with the State for imposition of a mandatory minimum sentence of seven years. The trial court accepted the plea agreement and sentenced the defendant accordingly.

The defendant filed a Rule 3.800(a) motion, arguing that a mandatory minimum sentence of seven years is unauthorized for this crime. The trial court denied the motion, reasoning that a seven-year mandatory minimum sentence is within the legal maximum for the crime. This appeal followed.

This particular crime carries a mandatory minimum sentence of fifteen years. § 893.135(1)(b)9.c., Fla. Stat. (1995). The statute authorizes the State to reduce or suspend the sentence of a person who provides substantial assistance. § 893.135(4), Fla. Stat. (1995). Both sides agree that this sentence was not part of a substantial assistance agreement with regard to drug trafficking. Since there was

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no substantial assistance agreement, a reduction of the mandatory minimum sentence from fifteen years to seven years was not authorized under this statute².³

Accordingly, we reverse the order denying Rule 3.800(a) and remand for further proceedings. If the State consents, the trial court shall resentence the defendant to any legal sentence. If the State objects, then the defendant must be given an opportunity to withdraw his plea and proceed to trial. See Forbert v. State, 437 So. 2d 1079, 1081 (Fla. 1983); State v. Galazz, 2 So. 3d 1083, 1084 (Fla. 3d DCA 2009); Epperson v. State, 955 So. 2d 642, 643-44 (Fla. 4th DCA 2007); Gifford v. State, 744 So. 2d 1046, 1047-48 (Fla. 4th DCA 1999); Ruiz v. State, 537 So. 2d 682, 683 (Fla. 3d DCA 1989).

In his Rule 3.850 motion, the defendant contends that the State acted in bad faith in refusing to recommend mitigation of his sentence pursuant to the plea agreement. Again, we remand for further proceedings.

At the time the plea agreement was presented to the trial court, the judge was informed that the defendant was to be transported to New York to testify in a

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criminal trial. The New York case was not related to the Florida case for which the defendant was being sentenced. The State agreed that if the defendant assisted the New York authorities in the prosecution of the New York case, the State would consider recommending mitigation of the Florida sentence.

The defendant was transferred to New York and testified. The District Attorney, Robert Morgenthau, and Assistant District Attorney, Amy L. Schwartz, both wrote letters stating that the defendant’s “cooperation was very important to the successful prosecution of this case.” The defendant filed his timely Rule 3.850 motion, seeking reduction of the sentence.

In the meantime, the Florida file had been transferred to an assistant state attorney who had not been involved in the original plea negotiation. The State refused to recommend any reduction. In the submission to the trial court, the State said, “The State has seen evidence of his assistance to the State of New York[;] however, in light of all the circumstances of the case including the fact that the ten year delay between the filing of the case and the sentencing was partly caused by the defendant absconding for a period of time and also the fact that the defendant was originally facing a fifteen (15) year minimum mandatory sentence… but he was only sentenced to a seven (7) year sentence and a waiver of the applicable fine of $250,000[,] [t]he State feels that this is sufficient mitigation/reduction in his

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sentence.” The trial court summarily denied the Rule 3.850 motion and the defendant has appealed.

The United States Supreme Court addressed this issue in Santobello v. United States, 404 U.S. 257 (1971). Santobello agreed to a guilty plea on condition that the prosecutor would make no sentencing recommendation. At sentencing, the prosecutor breached the promise and recommended the maximum sentence. The United States Supreme Court said:

This phase of the process of criminal justice, and the adjudicative element inherent in accepting a plea of guilty, must be attended by safeguards to insure the defendant what is reasonably due in the circumstances. Those circumstances will vary, but a constant factor is that when a plea rests in any significant degree on a promise or agreement of the prosecutor, so that it can be said to be part of the inducement or consideration, such promise must be fulfilled.

Id. at 262; Tillman v. State, 522 So. 2d 14, 15-16 (Fla. 1988) (following Santobello). The appropriate relief is for the trial court to decide. Santobello, 404 U.S. at 263; see also Ruth v. State, 574 So. 2d 225, 228-29 & n.3 (Fla. 2d DCA 1991).

In this case the defendant has made a prima facie showing that the State did not act in good faith. The reasons cited by the State to deny mitigation were all facts which already existed on the date of the plea agreement. The past history between the parties already had been taken into account when they entered into the

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plea agreement. The implication in the plea colloquy was quite clear that favorable consideration would be given to a sentence reduction if the defendant, upon transfer to New York, testified and provided material assistance to the New York authorities. The New York authorities submitted a detailed letter describing the assistance rendered by the defendant and stating that the assistance was important for the case. We reverse the order denying Rule 3.850 relief and remand for an evidentiary hearing on the question whether the State acted in good faith in considering the defendant’s request for mitigation.

Reversed and remanded for further proceedings consistent herewith.

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Carlos J. Martinez, Public Defender, and Billie Jan Goldstein, Assistant Public Defender, for appellant.

Bill McCollum, Attorney General, and Forrest L. Andrews, Jr., Assistant Attorney General, for appellee.

Not final until disposition of timely filed motion for rehearing.

An Appeal from the Circuit Court for Miami-Dade County, Beatrice Butchko, Judge.

Before CORTINAS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.

Opinion

ROTHENBERG, J.

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The defendant, Shuler Rod Hadley, appeals the denial of his motion to suppress the firearm that police found on his person when he was stopped and frisked by law enforcement. The defendant alleges that the stop and subsequent search of his person violated the United States and Florida constitutional protections against unreasonable searches and seizures. The question presented in this appeal is whether a tip provided to the police by a witness to a crime, who gave her name and specific details about the suspect, coupled with the officer’s observations, provided the police officer with reasonable suspicion to stop the defendant and to subsequently search him. Because the information provided by this witness was highly reliable, we affirm.

Article I, Section 12 of the Florida Constitution guarantees the right to be free “against unreasonable searches and seizures” and is to “be construed in conformity” with the identical rights contained within the Fourth Amendment to the United States Constitution. Police officers may curtail this right by stopping and patting down an individual to investigate possible criminal behavior, and to protect themselves and others against potentially armed suspects, based on information provided to law enforcement by an informant; but officers are bound by well-established case law holding that the tip must be sufficient to establish reasonable suspicion for the stop. Terry v. Ohio, 392 U.S. 1 (1968); J.L. v. State, 727 So. 2d 204 (Fla. 1998), aff’d, 529 U.S. 266 (2000).

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In State v. Maynard, 783 So. 2d 226, 229 (Fla. 2001), the Florida Supreme Court held that “[n]ot all tips are of equal value in establishing reasonable suspicion; they ‘may vary greatly in their value and reliability, ‘” and recognized that the classification of the call or report is of critical importance. (quoting Adams v. Williams, 407 U.S. 143, 147 (1972)). Because “the veracity of persons supplying anonymous tips is ‘by hypothesis largely unknown, and unknowable, ‘” id. (quoting Illinois v. Gates, 462 U.S. 213, 237 (1983)), anonymous tips have a low degree of reliability. For this reason, anonymous tips justify a Terry stop only when they are “sufficiently corroborated” through independent police investigation that, for example, may confirm some details of the tip. Alabama v. White, 496 U.S. 325, 331-32 (1990) (holding that a tip is sufficiently corroborated when it “contain[s] a range of details relating not just to easily obtained facts and conditions existing at the time of the tip, but to future actions of third parties ordinarily not easily predicted” (quoting Gates, 462 U.S. at 245)).

In Florida v. J.L., the United States Supreme Court found that an anonymous tip from a caller about whom “nothing is known” did not justify the stop and frisk of J.L. when, “[a]part from the tip, the officers had no reason to suspect [him] of illegal conduct.” 529 U.S. at 268. In that case, J.L. matched the description of a “young black male standing at a particular bus stop and wearing a plaid shirt” who was suspected of carrying a gun. Id. The United States Supreme Court concluded:

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That the allegation about the gun turned out to be correct does not suggest that the officers, prior to the frisks, had a reasonable basis for suspecting J.L. of engaging in unlawful conduct: The reasonableness of official suspicion must be measured by what the officers knew before they conducted their search. All the police had to go on in this case was the bare report of an unknown, unaccountable informant who neither explained how he knew about the gun nor supplied any basis for believing he had inside information about J.L.

Id. at 271. The Court distinguished the case from White, 496 U.S. at 325, in which the anonymous tipster told police that the suspect would be leaving a particular apartment at a particular time in a car with the right taillight lens broken and that she would be going to a specific motel with a brown attache case containing drugs details that were corroborated by independent police work and supplied to the police with the reasonable suspicion necessary for the stop. Florida v. J.L., 529 U.S. at 327.

At the high end of the reliability spectrum are tips from “citizen informants,” which are sufficient standing on their own to justify a Terry stop. Maynard, 783 So. 2d at 228. Citizen informants are average citizens who by happenstance find themselves in the position of a victim or a witness and subsequently relate to police what they know about an incident. 4 Wayne R. LaFave, Search and Seizure, § 3.3 (3d ed. 1996). Although citizen informants may, too, be anonymous, their identity is readily discoverable and their motivation is one of concern for the safety of their fellow citizens and not pecuniary gain. Maynard, 783 So. 2d at 229-30.

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In Maynard, the tipster identified herself as the suspect’s mother and described the suspect as “a white male, nineteen years of age, wearing a black and white shirt and black pants, and carrying a green backpack” containing a “Mac-10 Uzi machine gun.” Id. at 227. An officer in the general area indicated by the caller, identified the suspect and stopped him based on the tip alone, even though the suspect “was not doing anything illegal and suspicious.” Id. at 227-28. The Florida Supreme Court affirmed, finding that even though the tipster did not provide her name, by identifying herself as the suspect’s mother, she demonstrated “the basis of her knowledge and veracity, a factor that is seldom established from a truly anonymous tip”; and because she gave her address, her identity was “easily ascertainable.” Id at 230 (citing State v. Evans, 692 So. 2d 216, 219 (Fla. 4th DCA 1997)). Somewhere in between citizen informants and anonymous tipsters on the reliability scale are police informants, who likely have been involved in criminal activity and may be participating in undercover operations. See Barfield v. State, 396 So. 2d 793, 796 (Fla. 1st DCA 1981).

In the instant case, the defendant, in seeking reversal of the trial court’s order denying his motion to suppress, relies primarily on J.L., 529 U.S. at 266, which held that an anonymous tip indicating that an individual is carrying a gun is, without more, insufficient to justify a police officer’s stop and frisk of the individual. The defendant’s reliance on J.L., however, is misplaced, as the

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circumstances in this case are not analogous to those in J.L., and the holding similarly does not apply. Most important among the distinctions are the following. In the instant case, the tip that led the police to stop and frisk the defendant was not anonymous. The tip came from a woman who identified herself as Lorene Adams and she provided a phone number. Ms. Adams was a victim and a witness to alleged crimes, reporting an aggravated battery committed against her and shots being fired in the vicinity of a gas station. Thus, she qualifies as a citizeninformant and her tip falls at the high end of the reliability scale because she was not anonymous, her identity was readily ascertainable, she became a victim and observed further criminal conduct by chance, and she appeared to be motivated out of a concern for her own safety and that of the public. See Maynard, 783 So. 2d at 230; State v. DeLuca, 35 Fla. L. Weekly D1581 (Fla. 1st DCA July 16, 2010) (finding that the caller, who identified himself as the victim of a crime and provided the dispatcher with his name, cell phone number, and his location, and a description and tag number of the gunmen’s vehicle was a reliable citizen informant, despite the fact that the caller could not be located after the defendant was stopped).

The tip from the citizen informant was sufficient by itself to establish the requisite reasonable suspicion to justify the stop of the defendant, but we find it noteworthy that the tip offered additional indicia of reliability. For instance, unlike

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the tip in J.L., the tip in the instant case was not a simple allegation that an individual was carrying a weapon. It was, instead, to report that a crime had been committed. Additionally, the caller provided the whereabouts of the alleged shooter and described him in detail as an armed black male, with a blue cap, wearing a white T-shirt and blue jeans. The information the caller provided was also corroborated by the officer before he approached the defendant.

Immediately after hearing the BOLO generated by the caller’s report, Officer Jordan Fried, who was parked in the area described by the caller, scanned the crowd at the nearby Bunche Park Pool with binoculars. Officer Fried spotted the defendant, who was dressed in a white and blue hat, white shirt, and blue jean shorts, and thus matched the description provided by the witness, but who also stood out for another reason he was the only person not wearing a bathing suit at the community pool. Officer Fried also observed that the defendant’s ankle-length blue shorts were sagging more on the right side, indicating a heavy object in the pocket and further corroborating the caller’s report that the suspect was armed. When Officer Fried and another officer approached the defendant, Officer Fried testified that the defendant “looked alarmed” with an “[o]h, crap” expression and began walking quickly in the opposite direction. Conversely, in Florida v. J.L., the suspect was “just hanging out” and officers “had no reason” to suspect him of illegal conduct. 529 U.S. at 268. Through his observations, Officer Fried

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independently corroborated the details of the tip, and by doing so, established more than the requisite reasonable suspicion to justify the stop. After stopping the defendant, Officer Fried recovered a loaded.380 caliber firearm from his pocket.

Although we conclude that the information provided by Ms. Adams clearly falls at the high end of the reliability scale, and justified the officer’s investigatory stop of the defendant on reasonable suspicion, we find that the officer’s observations, which corroborated the information provided by the citizen informant, further enhanced the reliability of the information provided. Accordingly, based on the totality of the circumstances, we conclude that the officer had reasonable suspicion justifying his investigative stop and the pat down of the defendant, and the trial court did not err in denying the defendant’s motion to suppress the gun found on his person.

Affirmed.

CORTINAS, J., concurs.

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SCHWARTZ, Senior Judge (specially concurring).

The defendant’s position is that the principle that an anonymous tip is an unreliable basis for a Fourth Amendment seizure applies to a non-anonymous tip. It is a rare instance when the statement of a position contains its own refutation. This is one of them.

Carlos Lleo, in proper person.

Bill McCollum, Attorney General, for appellee.

Not final until disposition of timely filed motion for rehearing.

An Appeal from the Circuit Court for Miami-Dade County, Stacy D. Glick, Judge.

Before RAMIREZ, C.J., and COPE and ROTHENBERG, JJ.

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ROTHENBERG, J.

Carlos Lleo (“Lleo”) appeals the trial court’s order denying his petition for writ of habeas corpus on the basis that the court lacked jurisdiction to address Lleo’s challenge to the Florida Parole Commission’s (“the Commission”) revocation of his conditional release. Because we agree with Lleo that the trial court erred in concluding it was without jurisdiction, we reverse the trial court’s order and remand for consideration of Lleo’s petition on the merits.

A challenge to the Commission’s decision to revoke conditional release and the petitioner’s claim that he is entitled to immediate release is properly brought by a petition for writ of habeas corpus. See Barrera v. Fla. Parole Comm’n, 987 So. 2d 810, 811 (Fla. 1st DCA 2008); Stanley v. Moore, 744 So. 2d 1160, 1161 (Fla. 1st DCA 1999). Section 79.09, Florida Statutes (2009), requires the inmate to file his/her habeas corpus petition with the clerk of the circuit court of the county in which he/she is detained. See Broom v. State, 907 So. 2d 1261, 1262 (Fla. 3d DCA 2005); Perkins v. State, 766 So. 2d 1173, 1175 (Fla. 5th DCA 2000).

Reversed and remanded.

Henry Leunne, Appellant,
v.
The State of Florida, Appellee.

No. 3D10-1559
Lower Tribunal No. 98-6810C
98-6911C

District Court of Appeal of Florida

Opinion filed August 18, 2010.

Henry Leunne, in proper person.

Bill McCollum, Attorney General, for appellee.

Not final until disposition of timely filed motion for rehearing.

An Appeal under Florida Rule of Appellate Procedure 9.141(b)(2) from the Circuit Court for Miami-Dade County, John W. Thornton Jr., Judge.

Before RAMIREZ, C.J., and COPE and ROTHENBERG, JJ.

PER CURIAM.

Affirmed.

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COPE, J. (concurring).

Henry Leunne entered a guilty plea to federal charges and received a sentence of nineteen years in 1999. He was transferred to state custody to face state charges. He entered a guilty plea in 2000 and received a sentence of thirtythree years. The sentencing judge agreed that the thirty-three-year sentence should run concurrent with the nineteen-year federal sentence and the state sentencing order so indicates. However, counsel stated on the record that for the federal and state sentences to be concurrent, a motion needed to be filed in the federal court and concurrent sentencing was contingent on approval by the federal judge.

In defendant-appellant Leunne’s current motion, he complains that the sentences are not running concurrently, but does not explain what ruling was entered by the federal judge. In the absence of such an explanation, I can only assume that the federal judge denied the request that the state and federal sentences be concurrent. I therefore concur that affirmance is in order.

======================

This opinion is made available by David Edelstein, a criminal attorney practicing in Fort Lauderdale, Florida, as well as in other cities throughout Florida.

James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.

Bill McCollum, Attorney General, Tallahassee, and Sara Macks, Assistant Attorney General, Tampa, for Appellee.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

Appeal from the Circuit Court for Hillsborough County; Gregory P. Holder, Judge.

ALTENBERND, Judge.

Barbara J. Stanley appeals an unusual order that purports to modify her probation to require all future restitution payments to be made to the Florida Crimes Compensation Trust Fund rather than to the actual victim. We are not completely certain that Ms. Stanley was harmed by this order, but the irregularities associated with the order are substantial and the entities that may have been harmed by the order have

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had no notice of the order. Accordingly, we reverse the order and require the trial court to reinstate the earlier order of probation.

Ms. Stanley was charged with grand theft in 1998. She entered into a written negotiated plea that was specially drafted for her case. In the agreement, she promised to pay restitution in the amount of $37,976 to Dialysis Constructors, Inc., as part of a fifteen-year term of probation. The restitution was payable in monthly installments. Over the years, she had a few minor difficulties complying with the terms of her probation, but apparently she made significant payments of restitution.

In July 2009, a probation officer sent a letter to the trial court. The unsworn document explained that the probation officer believed that Dialysis Constructors, Inc., “is no longer in existence.”¹ The probation officer had completed a “diligent search” and had found no address for the company. It is unclear what the Department of Corrections had done with the money Ms. Stanley had paid over the years, but the probation officer suggested that “all future payments be allowed to go to the Crimes Compensation Trust Fund, Inc.”

The trial court set the letter for judicial review on a docket for July 6, 2009. From the record, it is unclear who received any notice of this hearing, but no effort to serve Dialysis Constructors, Inc., occurred, and it is not even clear that Ms. Stanley was given notice of the hearing. She was not copied with the letter that the probation officer sent to the trial court.

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At the hearing, the assistant public defender in attendance admitted that he had not seen the letter and did not know “what the exact issue is here.” The trial court explained: “Basically, the victim has gone bankrupt and I’m prepared to order the defendant to make restitution payments to the Crimes Compensation Fund.” It is noteworthy that nothing in the letter from the probation officer suggests that Dialysis Constructors, Inc., had filed for protection under the bankruptcy code. If it had, presumably there would have been a trustee to whom the restitution was payable.

The trial court further explained that it did not want the defendant to “benefit from the bankruptcy of this corporation.” It is noteworthy that the probation officer had never suggested that the restitution obligation should cease, so it is unclear how the trial court believed that Ms. Stanley was going to benefit from this situation. This suggestion, however, immediately prompted the assistant public defender to move for the cessation of restitution payments. The trial court rejected that motion and ordered all future restitution payments to be made to the Florida Crimes Compensation Trust Fund. The assistant public defender appealed this ruling.

About four days after this ruling was appealed, Ms. Stanley filed a pro se motion to terminate her probation. That motion was granted on August 19, 2009. It does not appear that the public defender was aware of this development, and it seems equally likely that Ms. Stanley was unaware of the hearing that altered the terms of her probation. It may be that the order on appeal is moot from her perspective.

Ms. Stanley’s attorney argues that the Florida Crimes Compensation Fund is not a “victim” as defined in section 775.089(1)(c), Florida Statutes (2009). That section provides: “The term ‘victim’ as used in this section and in any provision of law

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relating to restitution means each person who suffers property damage or loss, monetary expense, or physical injury or death as a direct or indirect result of the defendant’s offense or criminal episode….” § 775.089(1)(c). We do not decide in this case whether a government agency is a “person” for purposes of section 775.089.² But cf.Rodriguez v. State, 691 So. 2d 568, 569 (Fla. 2d DCA 1997) (holding sheriff’s department did not meet the statutory definition of “victim” under section 775.089); Knaus v. State, 638 So. 2d 156 (Fla. 2d DCA 1994) (same). Because the Florida Crimes Compensation Trust Fund suffered no “property damage or loss, monetary expense, or physical injury or death” as a result of Ms. Stanley’s offense, the Fund does not qualify as a victim, even if the probation officer’s creative suggestion seemed reasonable at the time.³

Obviously, there are likely to be many occasions when victims of crimes do not claim the money that has been collected on their behalf by the Department of Corrections. The idea of funding the Florida Crimes Compensation Trust Fund with such unclaimed payments has a certain appeal. However, the Legislature has already provided a solution for this problem. Section 945.31(3), Florida Statutes (2010), authorizes the Department to transfer such unclaimed funds to the General Revenue

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Fund if they are not claimed within one year after supervision is terminated. While the statute is not written in mandatory terms, it seems clear that the Legislature wants the Department to have a standard procedure for transferring such funds to the General Revenue Fund and not to file letters with the judiciary seeking modifications of orders of probation to make the funds payable to another attractive entity.

It is helpful to consider that the funds that the trial court ordered transferred to the Florida Crimes Compensation Trust Fund were not the exclusive property of the State. These payments were made by Ms. Stanley to satisfy her debt to Dialysis Constructors, Inc. That corporation or its successors has, at the very least, a beneficial interest in these funds. As a state we respect these property rights. For example, we have established extensive regulations to protect the rights of owners of a wide array of unclaimed property. See ch. 717, Fla. Stat. (2010). When the trial court ordered these funds transferred, there may still have been a person or entity that possessed the right to claim the funds. Giving that entity’s interest in these moneys to the Florida Crimes Compensation Trust Fund based merely on an unsworn letter from a probation officer under the procedures utilized in this case raises a plethora of legal issues that can be avoided if the Department simply follows the procedure established in section 945.31(3).

Accordingly, we reverse the order on appeal and remand for reinstatement of the prior order of restitution. Our disposition does not impact the order terminating Ms. Stanley’s probation. We assume that the Department, which is not a party to these proceedings, will account for the funds in accordance with the applicable statute.

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Reversed and remanded.

CASANUEVA, C.J., and KELLY, J., Concur.

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Per Curiam.

Joseph Carruthers (Defendant) appeals an order summarily denying his rule 3.850 motion for postconviction relief, and the order denying his motion for rehearing. We reverse.

Defendant entered a plea of nolo contendere and was sentenced to fifteen years and a day as a habitual felony offender (HFO), with a fifteenyear mandatory minimum as a prison releasee reoffender (PRR).

In the instant motion for postconviction relief, Defendant raised the following four grounds for relief: (1) ineffective assistance of counsel for (a) failing to inform him that he would have to serve the fifteen-year PRR sentence day for day; (b) failing to advise him that he would be ineligible for gain-time on his PRR and HFO sentences; and (c) misadvising him that he would have to serve only eighty-five percent of his fifteen-year sentence; (2) involuntary plea, because there was no factual basis for it; (3) involuntary plea, because the trial judge failed to explain to him the nature of the charges against him; and (4) involuntary plea, because neither trial counsel nor the judge informed him of the fifteen-year mandatory minimum sentence he would have to serve as a PRR; the trial court never conducted a sufficient inquiry to determine whether he was able to comprehend the plea proposal. He asked to withdraw his plea and proceed to trial.

With respect to the first and fourth grounds, while the state attached portions of the transcript to its response below which demonstrated that defense counsel informed the judge that he might have misadvised his

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client about the mandatory minimum, telling him that PRR meant he would have to do most of the time, and the trial court clarified that Defendant would have to serve the fifteen years day for day, nothing in the transcript excerpt which is attached to the response indicates that the trial court questioned Defendant to confirm that he understood this; at all times, the court appeared to address only the two attorneys. These grounds are not conclusively refuted; therefore, we reverse the summary denial of these two grounds and remand for further proceedings.

We note that the portions of the transcript the state attached are not part of the plea colloquy but were conversations just prior to trial. The actual plea hearing might show that the court properly advised the defendant of the minimum mandatory sentences and their consequences, but that is not part of the record of this appeal. Thus, on remand the state may still be able to conclusively refute the defendant’s allegations without the necessity of a hearing, depending upon what the court told the defendant during the plea colloquy.

With respect to the second and third grounds for relief, we disagree with the response of the state below that Defendant raised claims of trial court error, which are not cognizable in a rule 3.850 motion. On the contrary, a motion for postconviction relief is the proper vehicle for raising the involuntariness of a plea, which can result because the trial court failed to conduct the plea colloquy in a proper manner. However, both of these grounds were legally insufficient, because Defendant did not show how these alleged deficiencies prejudiced him. See Fla. R. Crim. P. 3.172(j) (“Failure to follow any of the procedures in this rule shall not render a plea void absent a showing of prejudice.”). He did not demonstrate that there actually was no factual basis for his plea; nor did he explain what it was that he did not understand about the nature of the charge; he did not allege that, had the trial court not erred in either of these two ways, he would not have entered his plea but would have proceeded to trial. The state now agrees that these two grounds should be stricken with leave to amend within a reasonable time, pursuant to Spera v. State, 971 So. 2d 754 (Fla. 2007). We reverse and remand for the trial court to do so.

Reversed and Remanded for further proceedings.

Warner, Stevenson and Ciklin, JJ., concur.

* * *

Appeal of order denying rule 3.850 motion from the Circuit Court for

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the Seventeenth Judicial Circuit, Broward County; Paul L. Backman, Judge; L.T. Case No. 02-15135CF10A.

Joseph Carruthers, Arcadia, pro se.

Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.

Not final until disposition of timely filed motion for rehearing.

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Per Curiam.

Rodney McCutcheon currently has five appeals pending, which we have consolidated for purposes of this opinion. We first address the merits, or lack thereof, of each appeal.

Rule 3.850 Summary Denial-4D09-4546

In case number 4D09-4546, McCutcheon appeals the denial of his postconviction motion challenging his conviction for grand theft entered in Broward circuit court case number 85-1144. McCutcheon entered a plea in that case in 1987 while he was on parole for sexual battery in an unrelated case. Pursuant to the negotiated plea agreement, McCutcheon was placed on probation for six months with early termination upon completion of 25 hours of community service. His parole was reinstated. He completed the probation and is not presently incarcerated for this offense, nor does it appear that this offense was in any way used to revoke his parole for the sexual battery.¹

Nevertheless, McCutcheon alleged newly discovered evidence in the form of a “preliminary hearing summary” prepared in August 1987 during the proceedings before the parole commission. The summary indicated that a parole officer had spoken with the assistant state attorney for the grand theft case, who indicated that the charge was unlikely to hold up because the Jefferson Ward store from which

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McCutcheon had stolen a video cassette recorder was no longer in business. McCutcheon now argues that his attorney should not have allowed him to plead to the grand theft charge because this summary shows that the State could not get the evidence to prove its case. McCutcheon alleges that he always wanted to go to trial on this charge and would not have entered his negotiated plea had he been properly advised.

This inadmissible hearsay is not evidence, nor is it new. McCutcheon was at the hearing and should have known this information well before his “discovery” of the hearing summary in 2008. Further, McCutcheon’s sworn affidavit, which he filed in support of this claim, refutes his allegations. In his affidavit, he explains that on September 10, 1987 he agreed to the negotiated plea because the State had alleged that it now had the witnesses to testify for trial. The August 1987 hearing summary does not in any way prove that the State did not later locate the witnesses and that they were not available in September 1987.

This claim is frivolous. McCutcheon cannot now, 23 years later, seek to withdraw his plea and challenge the veracity of the State’s assertion that it had located the witnesses or fault his counsel for not challenging this assertion back in 1987. Accordingly, we affirm the trial court order denying this motion.

This postconviction challenge appears particularly frivolous because the conviction at issue does not impact McCutcheon’s current life sentence for sexual battery in any substantial way. Moreover, this claim is not raised to obtain relief from a wrongful conviction for an offense McCutcheon did not commit. Instead, this claim, like so many of the proceedings McCutcheon has initiated in our courts, has not been brought in good faith.

Rule 3.850 Summary Denial-4D10-573

In 2009, McCutcheon filed a postconviction motion challenging his 1973 conviction in Broward circuit court case number 72-17985. In this case, McCutcheon was charged with larceny of a motor vehicle. On January 9, 1973, he pleaded to a lesser offense of unauthorized use of a motor vehicle and was credited with 83 days time served as his sentence.

Again, the conviction in this 1972 case has absolutely no discernable effect upon McCutcheon’s present incarceration on the unrelated sexual battery offense. Nevertheless, McCutcheon argues that his conviction must be vacated because the information charging felony larceny was

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filed in the “court of record” on May 23, 1972. McCutcheon argues that a court of record did not have jurisdiction to accept his plea because courts of record were abolished on January 1, 1973. He alleges that his plea is void because the court that accepted his plea did not exist. He wants the record of this case destroyed.

The State responded to this claim and attached a “Certificate of Transfer Pursuant to Transition Rule 4″ which transferred this case to the Broward circuit court effective January 2, 1973-before the plea. Upon transfer, the case received a new case number: 72-53CFB. The trial court denied the claim, and McCutcheon now appeals.

The record unequivocally refutes McCutcheon’s claim. Moreover, McCutcheon’s allegation that his case was not properly transferred in 1973 is also barred by laches, and his sentence was completed more than 37 years ago. Gusow v. State, 6 So. 3d 699, 705 (Fla. 4th DCA 2009) (“A motion filed outside the time limit is barred by laches as a matter of law unless one of the exceptions [set out in Rule 3.850(b)] is met.”). We affirm the trial court’s denial of this claim and conclude that this claim is frivolous.

Habeas Corpus Denial-4D09-3770

In 2008, McCutcheon filed a petition for writ of habeas corpus seeking to challenge his 1990 conviction for dealing in stolen property in Broward circuit court case number 89-22827. McCutcheon entered a negotiated plea to the charge in this case and received a sentence of 2.5 years for the dealing in stolen property count. The State nolle prossed a grand theft count.

McCutcheon alleges that the trial court lacked jurisdiction because the prosecutor signed the information charging him in this case without a properly sworn complaint affidavit. He alleges that the complaint affidavit “has an unofficial signature, and also lacks the official seal of such officer, or person taking or administering the oath…” He argues that the prosecutor did not have sworn testimony from witnesses when the information was filed in 1989. See Fla. R. Crim. P. 3.140(g) (requiring a prosecutor filing an information to certify “that he or she has received testimony under oath from the material witness or witnesses for the offense”).

This claim is frivolous. Logan v. State, 1 So. 3d 1253 (Fla. 4th DCA 2009) (recognizing that a postconviction motion which raised a similar claim was “untimely, successive, and a clear abuse of procedure.”). A

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defendant cannot object to an information on the ground it was not properly signed or verified after pleading to the merits. Fla. R. Crim. P. 3.140(g). See also Fla. R. Crim. P. 3.140(o).

The petition also argued that the Florida Statutes are invalid because they lack enacting clauses. See Art. III, § 6, Fla. Const. He contends that the circuit court lacked jurisdiction because the statutes under which he was charged do not contain language stating: “Be it enacted by the Legislature of the State of Florida.” The enacting clause requirement applies to the chapter laws passed by the legislature. The Florida Statutes, where these laws are codified, do not require enacting clauses.

This claim and McCutcheon’s argument that “[t]he so-called ‘statutes’ in the ‘Official Florida Statutes’ are not only absent enacting clauses, but are surrounded by other issues and facts which make their authority unknown and uncertain or questionable” is plainly malicious. We will not expend any judicial resources explaining McCutcheon’s argument that the Florida Statutes are invalid because they are prepared by the Reviser of Statutes and not published by the Secretary of State.

The trial court properly dismissed this abusive and procedurally barred petition. Fla. R. Crim. P. 3.850(h); Baker v. State, 878 So. 2d 1236, 1241 (Fla. 2004). We affirm.

Habeas Corpus Denial-4D10-304 & 4D09-2192

Finally, we come to case numbers 4D10-304 & 4D09-2192 where McCutcheon appeals the denial of two more petitions for writ of habeas corpus. These challenges are actually directed at the 1972 capital rape conviction in case number 72-23029, which is the reason for McCutcheon’s present incarceration.

In 4D09-2192, McCutcheon’s petition raised a number of claims purporting to challenge the trial court’s subject-matter jurisdiction. He again argues that the Florida Statutes are void because they lack enacting clauses, that the conviction and sentence of the court of record became “null and void” when those courts were subsequently abolished, and that his conviction is invalid because he was prosecuted by an assistant state attorney, and not a county or assistant county solicitor, as he alleges was required in a court of record.

In its response to McCutcheon’s petition, the State catalogued some of McCutcheon’s repetitive challenges to his conviction in this case,

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including at least six postconviction motions he filed since 1991 attempting to challenge the court’s subject-matter jurisdiction on the same or similar grounds. These prior motions were denied and affirmed on appeal. The State requested that the trial court enjoin McCutcheon from further pro se filing. The State requests that this court take similar action.

The trial court properly denied this frivolous and abusive motion. We affirm.

In the petition appealed in 4D10-304, McCutcheon argued that he must immediately be released from prison because when he committed this offense and was sent to prison, the order of commitment committed him to the “Department of Health and Rehabilitative Services, Division of Corrections.” The entity within the executive branch charged with executing sentences is now known as the Department of Corrections. McCutcheon argues that the Department of Corrections has no authority to hold him. He demands his immediate release or transfer to the now non-existent Division of Corrections.

The trial court dismissed this claim explaining how the functions of the Division of Corrections were transferred to a different entity and how that entity was renamed the Department of Corrections.

McCutcheon also argued that the Department of Corrections lacked subject matter jurisdiction to admit him because he was sentenced by a criminal court of record rather than a circuit court. McCutcheon does not want to disturb his judgment or sentence. Instead, he claims that the Department of Corrections should not have accepted him into custody and that he should be transferred back to the now defunct Department of Health and Rehabilitative Services, Division of Corrections. In denying this claim, the trial court correctly noted that the statute relied upon by McCutcheon did not prohibit the Department of Corrections from assuming custody of McCutcheon as the successor to the former Division of Corrections. McCutcheon appeals the denial of both claims. We affirm.

The writ of habeas corpus and postconviction procedures are an essential part of due process. They ensure fair and equal justice for all. However, when overused and abused by those they seek to protect, we must be concerned that the meritorious claim of another litigant, who has not abused the process, may be lost. See Gusow, 6 So. 3d at 705. Justice Jackson saw this coming when some 55 years ago he described the “floods of stale, frivolous and repetitious [habeas corpus] petitions”

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inundating the federal courts:

It must prejudice the occasional meritorious application to be buried in a flood of worthless ones. He who must search a haystack for a needle is likely to end up with the attitude that the needle is not worth the search.

Brown v. Allen, 344 U.S. 443, 536-39 (1953) (Jackson, J., concurring).

The damage to the remedy continues as more and more abusive prisoner litigants flood our state trial and appellate courts with frivolous, repetitive, and procedurally-barred postconviction challenges. Within this mountain of hay, the meritorious claim of another litigant, who has not abused the process, may be lost.

Rodney McCutcheon is the epitome of a serial postconviction relief filer. Since his conviction for sexual battery in 1972, after which he was sentenced to life in prison, McCutcheon has initiated at least 50 cases in this court alone. We are confident that a sophisticated, highlyexperienced prisoner litigant such as McCutcheon, who has now likely litigated cases in the federal trial and appellate courts, is aware that none of the claims raised in the instant appeals have arguable merit. The inescapable conclusion is that these frivolous filings were maliciously brought. These abusive filings interfere with the justice system’s ability to consider legitimate claims. Those who may be wrongly convicted or otherwise entitled to relief are stymied in their efforts for justice by the hay generated by the persistent frivolous filings of litigants like Rodney McCutcheon.

We conclude that these appeals are frivolous, malicious, and not brought in good faith. Accordingly, we direct the clerk of this court to forward a certified copy of this opinion to the appropriate institution for consideration of disciplinary procedures. § 944.279(1), Fla. Stat. (2009).

Simultaneously with this opinion, we are issuing an order directing Rodney McCutcheon to show cause why this court should not henceforth refuse to accept his pro se filings in perpetuity. See State v. Spencer, 751 So. 2d 47 (Fla. 1999).

Affirmed.

Gross, C.J., May and Damoorgian, JJ., concur.

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Appeals of orders denying rule 3.850 motions from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Jeffrey R. Levenson and Mily Rodriguez-Powell, Judges; L.T. Case Nos. 85-1144 CF, 72-23029 CF10C and 72-17985 CF10B.

Appeals from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Pedro E. Dijols, Kenneth L. Gillespie, Ilona M. Holmes, and Mily Rodriguez-Powell, Judges; L.T. Case Nos. 89-22827 CF10A and 72-23029 CF10C.

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Okeechobee County; F. Shields McManus, Judge; L.T. Case No. 2008CA623.

Rodney McCutcheon, Okeechobee, pro se.

Bill McCollum Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellee, State of Florida. (Case nos.: 4D09-2192 & 4D09-3770).

Barbara Debelius, Tallahassee, for appellee, Florida Department of Corrections.

Not final until disposition of timely filed motion for rehearing.

——–

Carlos J. Martinez, Public Defender, and Amy Weber, Assistant Public Defender, for appellant.

Bill McCollum, Attorney General, and Forrest L. Andrews, Jr., Assistant Attorney General, for appellee.

An Appeal from the Circuit Court for Miami-Dade County, Daryl E. Trawick, Judge.

Not final until disposition of timely filed motion for rehearing.

Before SHEPHERD, CORTINAS, and SALTER, JJ.

Opinion

SHEPHERD, J.

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Milvio Coiscou appeals his conviction of attempted second-degree murder after he shot the victim in the eye with a BB gun, thinking the safety was on.

The State charged Coiscou with attempted first-degree murder with a deadly weapon. The trial court instructed the jury on attempted premeditated murder, and the lesser-included offenses of attempted second-degree murder and attempted voluntary manslaughter by act. The attempted voluntary manslaughter charge given by the trial court was the then existing standard:

Milvio A. Coiscou committed an act or procured the commission of an act, which was intended to cause the death of O.F. (A Minor), and would have resulted in the death of O.F. (A Minor), except that someone prevented Milvio A. Coiscou from killing O.F. (A Minor) or he failed to do so.

See Fla. Std. Jury Instr. (Crim.) 7.7 (2007) (emphasis added).

Subsequent to the trial of this case, the Florida Supreme Court disapproved that portion of the instruction which requires the State to prove the defendant committed an act “which was intended to cause the death” of the victim. State v. Montgomery, 35 Fla. L. Weekly S204, S207 (Fla. Apr. 8, 2010) (“[T]he relevant intent is the intent to commit an act which caused the death,… not… that the defendant intended to kill the victim.”); see also In re Amends. to Std. Jury Instrs. in Crim. Cases-Instr. 7.7, 35 Fla. L. Weekly S209 (Fla. Apr. 8, 2010) (simultaneously amending standard jury instruction 7.7 on an interim basis, striking the language requiring an intent to kill). Of course, the trial court did not

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have the benefit of Montgomery at the time of trial. Although the defendant did not object to the giving of this jury charge in the trial court, the State properly concedes that because the offense for which the defendant was adjudged by the jury was only one-step removed from the necessarily included offense of manslaughter, the error is per se reversible. See Montgomery, 35 Fla. L. Weekly at S207 (citing Pena v. State, 901 So. 2d 781 (Fla. 2005)).

We note this Court, in Valdes-Pino v. State, 23 So. 3d 871 (Fla. 3d DCA 2009), certified decisional conflict with the First District Court of Appeal’s opinion in Montgomery v. State, 34 Fla. L. Weekly D360 (Fla. 1st DCA Feb. 12, 2009). In light of the Florida Supreme Court’s approval of Montgomery, we conclude Valdes-Pino is no longer controlling precedent in this District.

Reversed and remanded for a new trial.

George W. Hankins, pro se.

Bill McCollum, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee.

MOTION AND, IF FILED, DETERMINED NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING

Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Hillsborough County; Denise A. Pomponio, Judge.

ALTENBERND, Judge.

George W. Hankins appeals the trial court’s order denying his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Mr. Hankins claims that his prison releasee reoffender (PRR) sentence of life in prison in circuit court case number 02-CF-012635 is illegal because he did not qualify to be

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sentenced as a PRR. The trial court denied the motion on the basis that Mr. Hankins was challenging the sentencing process and that such a challenge was not proper in a motion filed pursuant to rule 3.800(a). Although it is true that sentencing procedures are generally not a subject for review under rule 3.800(a), we conclude that the trial court has misconstrued Mr. Hankins’ claim. Accordingly, we reverse and remand for further proceedings.

The narrow issue in this case is whether a specific offense under New York law can serve as the predicate offense for PRR sentencing. It is apparent from the record that the trial court and others who have examined Mr. Hankins’ case have assumed that this issue could be determined based upon a factual description of Mr. Hankins’ acts in New York, rather than upon the elements of the New York offense. We conclude that this assumption is wrong and that, under Florida sentencing law, the question of whether the offense in New York qualifies Mr. Hankins for PRR sentencing is determined by an examination of the legal elements of the New York offense. We note that another judge in a separate case appears to have analyzed the question as one of law and has agreed with Mr. Hankins. We are not binding this trial court by the decision of the other trial court, but that decision is at least persuasive.

I. The Three Armed Robberies in Florida in 2002

Mr. Hankins was released from prison in New York in 2002 and quickly came to Florida, committing three robberies while armed with a BB gun. These armed robberies were all committed in Hillsborough County on, respectively, July 29, July 31, and August 5, 2002. This case involves the armed robbery committed on August 5.

The cases were not resolved by the same trial judge and were not

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resolved in chronological order. Mr. Hankins was first convicted of the August 5 armed robbery in circuit court case number 02-CF-012635 and sentenced by Judge Debra Behnke to life in prison as a PRR, which is the sentence being challenged in this postconviction appeal.

Next, in case no. 02-CF-012873, he was convicted of the July 31 armed robbery. Initially, Judge J. Rogers Padgett sentenced Mr. Hankins to life in prison as a PRR. The PRR designation in that case was based on the same New York offense that was relied upon by Judge Behnke. During the direct appeal process, Judge Padgett granted a motion to correct sentencing error, finding that the New York prior conviction did not qualify Mr. Hankins for PRR sentencing. On April 11, 2005, Mr. Hankins was resentenced to fifteen years in prison under the Criminal Punishment Code. On direct appeal, this court affirmed the judgment and Criminal Punishment Code sentence without a written opinion. See Hankins v. State, 928 So. 2d 1228 (Fla. 2d DCA 2006) (table decision). The State did not cross-appeal the resentencing and change of Mr. Hankins’ sentence from a PRR sentence to a Criminal Punishment Code sentence.

Finally, in case no. 02-CF-012875, Mr. Hankins was convicted of the July 29 armed robbery with a weapon and sentenced to thirty years in prison as both a habitual felony offender (HFO) and PRR. The PRR designation was again based on his release from confinement in New York due to the same criminal possession of a weapon conviction. On direct appeal, this court struck the HFO designation but otherwise affirmed the judgment and sentence. See Hankins v. State, 886 So. 2d 1026 (Fla. 2d DCA 2004). That sentence is not challenged in these proceedings.

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II. The New York Offenses

The records in Mr. Hankins’ trial court file from New York are not extensive. They indicate that he has been in prison in New York on several occasions since 1992 and that he was last released on January 3, 2002. It appears that his last imprisonment in New York was based on convictions for petit larceny, menacing in the second degree, and criminal possession of a weapon in the third degree. In the Florida cases, the State has argued that the criminal possession of a weapon in the third degree is the qualifying offense for Mr. Hankins’ treatment as a prison releasee reoffender. That offense is a violation of section 265.02(1) of the New York Penal Code. The record does not contain a copy of that offense as it was codified in New York at the time of the offense, which appears to have occurred in 1997.

At the sentencing hearing before Judge Behnke, of which we do have a transcript, the State did not argue that the elements of the New York offense qualified Mr. Hankins for treatment as a prison release reoffender. Instead, the discussion centered on whether Mr. Hankins’ actions apparently waiving a partially opened, serrated three-inch pocketknife would constitute a felony in Florida.

III. The Florida PRR Statute

Section 775.082(9)(a), Florida Statutes (2002), establishes that eligibility for a PRR designation on account of a release from out-of-state incarceration requires that the incarceration have been for “an offense for which the sentence is punishable by more than 1 year in this state.”¹ The statute does not explain how one makes this

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determination. It is noteworthy that the statute does not refer to the actions or conduct in another state, but rather to an “offense.”

In the context of criminal scoresheets, the supreme court has held that only the elements of an out-of-state conviction, and not the facts underlying the conviction, can be considered in determining whether the out-of-state conviction is analogous to a Florida offense. See Dautel v. State, 658 So. 2d 88, 91 (Fla. 1995).² The supreme court has counseled that in making comparisons between out-of-state and Florida offenses, the statutory language must be strictly construed in favor of the defendant. See Carpenter v. State, 785 So. 2d 1182, 1205 (Fla. 2001). Especially in light of the statutory requirement that we interpret criminal statutes strictly in favor of the defendant, § 775.021, we conclude that the out-of-state offense referred to in section 775.082(9)(a) must be interpreted to require that the elements of the out-of-state offense would be sufficient for a conviction under a Florida statute that is punishable as a felony.³

Without a copy of the relevant New York statute in this record, we decline to take judicial notice of the elements of Mr. Hankins’ New York offense in 1997. At least on preliminary review, it would appear that the statute merely required that he possess a knife while having previously been convicted of any crime. See N.Y. Penal Law § 265.01,.02 (McKinney 1996). The closest Florida felony offense would seem to

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be possession of a concealed weapon by a person having previously been convicted of an offense that is a felony. See § 790.23(1)(d), Fla. Stat. (1995). The New York statute does not include the element of concealment, and the New York statute allows the prior conviction to be for any crime, not just for a felony. See People v. Cornish, 427 N.Y.S.2d 564, 566 (N.Y. Sup. Ct. 1980).

Thus, at least preliminarily, this court is inclined to believe that Judge Padgett was correct and that Mr. Hankins’ New York conviction is not a sufficient conviction to support PRR sentencing in this case. See generally Hollingsworth v. State, 802 So. 2d 1210, 1211 (Fla. 2d DCA 2002) (finding that an out-of-state prior conviction not substantially similar in elements to a Florida felony is not a qualified offense for purposes of the habitual offender statute).

The trial court denied Mr. Hankins’ motion on the grounds that it presented a procedural error that would not be cognizable under rule 3.800(a). Because the lawfulness of Mr. Hankins’ life sentence as a PRR is a purely legal question that can be determined from the content of the applicable New York and Florida statutory law, we hold the trial court erred in ruling this motion was not cognizable under rule 3.800(a). The State, however, has not had an opportunity to develop the issue in the trial court. Therefore, on remand, the trial court shall conduct further proceedings consistent with this opinion. If it ultimately determines that Mr. Hankins’ sentence as a PRR is illegal, it shall vacate the sentence and resentence Mr. Hankins in accordance with the proper law. See Plute v. State, 835 So. 2d 368 (Fla. 2d DCA 2003). We note that a guidelines sentence for this offense would still permit the trial court to exercise its discretion to

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impose a life sentence, but that decision would not be compelled as it is under the statutes applicable to prison releasee reoffenders.

Reversed and remanded with directions.

WHATLEY and VILLANTI, JJ., Concur.

——–

Alfred Isaac, pro se, Appellant.

Bill McCollum, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.

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

An appeal from the Circuit Court for Alachua County. David A. Glant, Judge.

Opinion

PER CURIAM.

Alfred Isaac, Appellant, challenges the trial court’s denial of his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. In the motion, Appellant alleged ten grounds of ineffective assistance of counsel and presented one double jeopardy claim. We affirm the trial court’s non-summary

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denial of claim I and summary denial of claim XI without further discussion. However, we reverse the trial court’s summary denial of claims II through X.

In support of its summary denial of claims II through X, the trial court identified nine documents as attachments to its order. These documents, however, were not actually attached to the trial court’s order. The State correctly concedes that the trial court failed to attach portions of the record conclusively refuting claims II through X and that the trial court’s summary of denial of these claims must be reversed and remanded for attachment of the portions of the record that conclusively refute the claims. See Doss v. State, 644 So. 2d 124, 125-26 (Fla. 1st DCA 1994) (reversing and remanding claims where the trial court relied on the record in finding the claims without merit but failed to attach pertinent portions of the record to the order summarily denying the claims); see also Taylor v. State, 583 So. 2d 823, 823 (Fla. 4th DCA 1991) (reversal and remand appropriate where some records were referred to in the order, but they were not attached as required by Rule 3.850). On remand, we direct the trial court to attach the portions of the record referenced in its order as to claims II through X or to conduct an evidentiary hearing on these claims, if necessary.

AFFIRMED in part, REVERSED in part, and REMANDED with directions. HAWKES, C.J., BENTON and LEWIS, JJ., CONCUR.