Florida Criminal Law Opinions

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

January Term 2011

JOHN KEVIN HOLT,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D10-2506 [June 22, 2011]

CONNER, J.

John Kevin Holt (Holt) appeals the denial of his motion to correct illegal sentences filed under Florida Rule of Criminal Procedure 3.800(a). After a jury trial, Holt was convicted and sentenced on four felony sexual offenses involving a child victim. On initial appeal, this court sent the case back for resentencing on all four counts. See Holt v. State, 33 So. 3d 811 (Fla. 4th DCA 2010). After the resentencing, Holt filed the motion to correct illegal sentences as to three counts, but on appeal Holt addresses counts 1 and 2 only. The court did not enter an order on the motion, thus the motion is deemed denied. The state agrees on appeal there is error in the sentences for counts 1 and 2.

Count 1 charged Holt with sexual battery on a child under twelve years of age by a person eighteen years of age or older in violation of section 794.011(2), Florida Statutes (Supp. 1992). The amended information alleged the offense occurred between October 26, 1992, and October 25, 2001. On resentencing, the court imposed a sentence of imprisonment for a term of “natural life.” In 1992, the crime was classified as a “capital felony” punishable by life imprisonment with a minimum mandatory sentence of twenty-five years before becoming eligible for parole. Thus, a sentence to a term of “natural life” does not conform to the statutory sentence.

Count 2 charged Holt with a lewd act on a child under sixteen years of age in violation of section 794.011(2), Florida Statutes. The amended information alleged the offense occurred between October 26, 1992, and October 1, 1999. The jury was not asked by its verdict to decide when

the offense occurred. The time period of the offense straddles more than one sentencing guideline. Where the time period for the offense straddles different sentencing guidelines, the defendant is entitled to the benefit of the most lenient sentencing guideline. Scott v. State, 958 So. 2d 596 (Fla. 4th DCA 2007); Glynn v. State, 868 So. 2d 1280 (Fla. 4th DCA 2004). In this situation, the most lenient sentencing guideline is the 1992 guideline. The fifteen-year sentence imposed at resentencing for count 2 exceeds the 1992 guideline. As the trial court gave no reasons for an upward departure sentence, on remand for further resentencing the trial court must impose a sentence within the guideline. Brown v. State, 593 So. 2d 1042 (Fla. 1992); Pope v. State, 561 So. 2d 554 (Fla. 1990).

We therefore reverse this case for resentencing on counts 1 and 2 in conformity with this opinion.

TAYLOR and MAY, JJ., concur.

* * *

Appeal from the Circuit Court for the Nineteenth Judicial Circuit, Okeechobee County; Robert E. Belanger, Judge; L.T. Case No. 472006CF000103A.

Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.

Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

January Term 2011

JOSEPH DeLUCCA,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D10-2395

[June 22, 2011]

PER CURIAM.

Joseph DeLucca appeals the trial court’s summary denial of his timely Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. Appellant seeks to withdraw his November 10, 2008 plea to child neglect in this case and his August 12, 2009 admission to violating probation for this charge.1 Through the course of the motion, appellant catalogues a host of matters and implies a variety of claims, such as, that he received ineffective assistance of counsel and that his pleas were involuntary.2 The motion fails to clearly identify specific grounds for relief.

1Appellant entered a negotiated plea to the child neglect charge and was placed on probation. Later, he admitted violating his probation based on an arrest for domestic violence and was sentenced to fifteen days credited as time served.

2The motion explains that due to auto accidents appellant suffered severe injuries that required numerous surgeries. The motion implies that appellant had a valid involuntary intoxication defense to the child neglect charge. See § 775.051, Fla. Stat. (2007). The basis for that charge was his operation of a motor vehicle in an impaired state while transporting his child. Appellant alleges that he became unexpectedly dizzy as a result of taking pain medication pursuant to a prescription. The motion alleges that the domestic violence charges, upon which the violation of probation was predicated, were false and that he had a defense to the violation of probation charge. The rambling motion suggests that counsel misled him as to the availability of defenses and other matters, that counsel failed to research and inform the court of his medical history and other matters, and that his medical condition and the medications he was taking rendered his plea involuntary.

Without ordering a state’s response to the motion, and without attaching any records, the trial court denied the motion explaining simply that “The Defendant entered into a negotiated plea.”

We conclude that the generalized allegations of ineffective assistance of counsel and/or that a plea was involuntary are insufficient. A motion for postconviction relief must clearly specify the grounds upon which relief is sought. See Fla. R. Crim. P. 3.850(a) (setting out the grounds that may be claims for relief in a postconviction motion). Specifying each ground for relief allows the state to respond meaningfully to each of the claims and permits the court to rule on the claims in an orderly manner.

The motion also fails to contain required information and allegations and was legally insufficient on this basis as well. The motion does not contain the information required by Florida Rule of Criminal Procedure 3.850(c). As to the suggestions of ineffective assistance of counsel, the motion does not allege that, but for the deficiency of counsel (which is not clearly specified in this motion), appellant would not have pleaded and would have proceeded to trial. Poisal v. State, 876 So.2d 1262 (Fla. 4th DCA 2004). See Hill v. Lockhart, 474 U.S. 52 (1985).

Because the Rule 3.850(b) time limit has now run as to the November 2008 plea, we affirm without prejudice for appellant to file a sufficient motion within sixty days of the mandate issued for this opinion.

WARNER, POLEN and CONNER, JJ., concur.

* * *

Appeal of order denying rule 3.850 motion from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; Amy L. Smith, Judge; L.T. Case No. 2008CF002402AXX.

Joseph DeLucca, Delray Beach, pro se.

No appearance required for appellee.

Not final until disposition of timely filed motion for rehearing.

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

January Term 2011

JOSEPH CALANDRA,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D10-1653

[June 22, 2011]

PER CURIAM.

Joseph Calandra (Defendant) appeals the denial of his rule 3.800(a) motion. We affirm.

For a first degree murder committed in 1992, Defendant was sentenced to prison “For a term of Natural Life without possibility of parole for 25 years.” He filed a rule 3.800(a) motion to correct illegal sentence, which the trial court denied, claiming the foregoing sentence was illegal and asking instead to be resentenced to “life in prison with twenty five years minimum mandatory with the possibility of parole.” However, that sentence is functionally the same as his current sentence. After Defendant has served twenty-five years, he will become eligible for parole. See § 775.082(1), Fla. Stat. (1991) (providing that “[a] person who has been convicted of a capital felony shall be punished by life imprisonment and shall be required to serve no less than 25 years before becoming eligible for parole”).1 Therefore, no correction is necessary.

Affirmed.

1 This provision was amended effective May 25, 1994, by Chapter 94-228, section 1, Laws of Florida. As a result of that amendment, one convicted of a capital felony, unless sentenced to death, had to be sentenced to life imprisonment, and “[i]f convicted of murder in the first degree . . . shall be ineligible for parole.” § 775.082(1)(a), Fla. Stat. (Supp. 1994). However, the amendment does not affect Defendant, who committed his offense in 1992, before the effective date of the amendment.

GROSS, C.J., HAZOURI and CIKLIN, JJ., concur.

* * *

Appeal of order denying rule 3.800(a) motion from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; John J. Hoy, Judge; L.T. Case No. 1992CF010009AXX.

Joseph Calandra, Immokalee, pro se.

No appearance required for appellee.

Not final until disposition of timely filed motion for rehearing.

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

January Term 2011

STATE OF FLORIDA,

Appellant,

v.

ROBERTO CASTANEDA,

Appellee.

No. 4D10-1591 [June 22, 2011]

STEVENSON, J.

Defendant Roberto Castaneda was charged with one count of possession of cocaine and one count of driving under the influence. The State appeals an order granting Defendant’s motion to suppress the results of the field sobriety exercises. Because we conclude that the officers had reasonable suspicion to detain Defendant, we reverse.

Defendant was pulled over by an officer around 1:00 a.m. for speeding. Prior to initiating the traffic stop, the officer followed Defendant for approximately four blocks and clocked Defendant traveling sixty miles per hour in a forty mile-per-hour zone. When the officer approached Defendant, he smelled the odor of an alcoholic beverage on Defendant’s breath. The officer also noticed that Defendant had bloodshot, watery eyes. When the officer asked Defendant whether he had been drinking, Defendant replied “No.” At that point, the officer asked Defendant to complete some roadside sobriety exercises. The trial court determined that the officer did not have reasonable suspicion to detain Defendant for a DUI investigation, reasoning that Defendant did not exhibit additional signs of impairment, such as staggering, and suppressed the results of the exercises.

When reviewing a motion to suppress, this court should defer to the trial court’s factual findings, while reviewing application of the law to the facts de novo. See McKelvin v. State, 53 So. 3d 401, 403 (Fla. 4th DCA 2011). In order to detain someone for a DUI investigation, the officer must have reasonable suspicion that the detainee committed the offense. See State v. Taylor, 648 So. 2d 701, 703 (Fla. 1995). A reasonable

suspicion “‘has a factual foundation in the circumstances observed by the officer, when those circumstances are interpreted in the light of the officer’s knowledge and experience.’” Origi v. State, 912 So. 2d 69, 71 (Fla. 4th DCA 2005) (quoting State v. Davis, 849 So. 2d 398, 400 (Fla. 4th DCA 2003)).

In Origi, an officer pulled over the defendant for driving about ninety miles per hour in a sixty-five mile-per-hour zone. Id. at 70. When the officer approached the driver’s side window of the defendant’s vehicle, he observed that the defendant “smelled like an alcoholic beverage.” Id. The officer called for DUI backup and advised the DUI task force trooper who responded that he had noticed the “odor of an alcohol beverage” and that the defendant had “bloodshot and glassy eyes.” Id. Though the defendant exhibited other signs of impairment after he exited the vehicle, including staggering, we held that the defendant’s high rate of speed, the smell of alcohol, and the defendant’s bloodshot, glassy eyes were enough to give rise to a reasonable suspicion sufficient to justify detaining the defendant for a DUI investigation. Id. at 71–72.

Here, the officer made the same observations which we said in Origi constituted reasonable suspicion to detain the driver for a DUI investigation—th e officer observed Defendant speeding, smelled an alcoholic beverage on Defendant’s breath, and observed that Defendant’s eyes were bloodshot and watery. Consistent with Origi, we hold that these observations provided sufficient reasonable suspicion to detain Defendant for the purpose of conducting a DUI investigation. See also State v. Ameqrane, 39 So. 3d 339, 342 (Fla. 2d DCA 2010) (finding reasonable suspicion for DUI investigation where the defendant was speeding, smelled of alcohol, and had glassy, bloodshot eyes). Thus, the order is reversed.

Reversed.

TAYLOR and GERBER, JJ., concur.

* * *

Appeal of a non-final order from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Bernard I. Bober, Judge; L.T. Case No. 09-12301 CF10A.

Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellant.

Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellee.

Not final until disposition of timely filed motion for rehearing.

Courtesy of David Edelstein

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

January Term 2011

IGNAZIO ABBATE,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D09-3078 [June 22, 2011]

GERBER, J.

The defendant appeals the circuit court’s denial of his motion to withdraw plea. The defendant argues that the court should have granted the motion based upon prior counsel’s misadvice that convictions for second-degree arson and arson resulting in injury to another did not violate the double jeopardy clause.1 We agree with the defendant and reverse.

The state alleged that the defendant hired two men to set fire to his restaurant so he could collect money from his insurance company. The men suffered permanent disfigurement when they set the fire. The state charged the defendant with second-degree arson under section 806.01(2), Florida Statutes (2006), which provides:

Any person who willfully and unlawfully, or while in the commission of any felony, by fire or explosion, damages or causes to be damaged any structure, whether the property of himself or herself or another, under any circumstances not referred to in subsection (1), is guilty of arson in the second degree, which constitutes a felony of the second degree . . . .

1 See Amend. V, U.S. CONST. (“No person shall be . . . subject for the same offence to be twice put in jeopardy of life or limb . . . .”); Art. I, § 9, Fla. Const. (“No person shall be . . . twice put in jeopardy for the same offense . . . .”).

The state also charged the defendant with arson resulting in injury to another under section 806.031(2), Florida Statutes (2006), which provides:

A person who perpetrates any arson that results in great bodily harm, permanent disability, or permanent disfigurement to a firefighter or any other person, regardless of intent or lack of intent to cause such harm, is guilty of a felony of the second degree . . . .

The state also charged the defendant with two other offenses not relevant to this opinion.

The defendant entered an open plea to all four offenses. During the plea colloquy, neither the defendant’s counsel nor the court discussed double jeopardy. The court sentenced the defendant to thirty months in prison running concurrently on each offense to be followed by five years of probation. A violation of probation could subject the defendant to fifteen years in prison on each offense with credit for any time served.

After sentencing, the defendant filed a motion to withdraw his plea. According to the motion, the defendant’s new counsel advised him that convictions for both arson and arson resulting in injury to another violate double jeopardy. The defendant argued that if he had known the convictions violated double jeopardy, he would not have pled guilty.

The court held an evidentiary hearing on the motion. The defendant’s prior counsel testified that they researched whether convictions for both arson and arson resulting in injury to another violate double jeopardy. They could not find any case on that issue. However, they concluded that convictions on both offenses would not violate double jeopardy pursuant to section 806.031(3), Florida Statutes (2006), which provides:

Upon conviction and adjudication of guilt [for arson resulting in injury to another], a person may be sentenced separately, pursuant to s. 775.021(4), for any [arson resulting in injury to another] and for any arson committed during the same criminal episode. . . .

The defendant’s prior counsel testified that they discussed that conclusion with the defendant before he pled guilty to the offenses.

The circuit court denied the motion to withdraw plea. The defendant then filed this appeal. We review the circuit court’s denial of the motion

to withdraw plea for an abuse of discretion. Thompson v. State, 50 So. 3d 1208, 1210 (Fla. 4th DCA 2010) (citation omitted).

We conclude that the circuit court erred in denying the defendant’s motion to withdraw plea. As our supreme court stated in Novaton v. State, 634 So. 2d 607 (Fla. 1994):

The general rule is that a plea of guilty and subsequent adjudication of guilt precludes a later double jeopardy attack on the conviction and sentence. There is an exception to this general rule when (a) the plea is a general plea as distinguished from a plea bargain; (b) the double jeopardy violation is apparent from the record; and (c) there is nothing in the record to indicate a waiver of the double jeopardy violation.

Id. at 609 (citation omitted).

Here, the defendant has shown all three elements to satisfy the exception. First, although the terms of the sentence originated from plea negotiations, the ultimate plea was a general open plea as distinguished from a plea bargain. Second, a double jeopardy violation is apparent from the record. Section 775.021(4), Florida Statutes (2006) provides:

(b) The intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity as set forth in subsection (1) to determine legislative intent. Exceptions to this rule of construction are:

. . . .

3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.

Second-degree arson is a lesser offense of arson resulting in injury to another because the statutory elements of second-degree arson as provided in section 806.01(2) are subsumed by the greater offense of arson resulting in injury to another as provided in section 806.031(2). It is irrelevant that both offenses are second-degree felonies which carry the same penalties. See Haliburton v. State, 7 So. 3d 601, 604 (Fla. 4th DCA 2009) (“‘[L]esser included offenses are determined based on the elements of the offenses, not on the penalties attached.’”) (citation omitted). Thus, convictions for both offenses violate double jeopardy.

Third, there is nothing in the record to indicate a waiver of the double jeopardy violation. Instead, the record indicates that prior counsel was ineffective in advising the defendant that convictions for both offenses do not violate double jeopardy. See Keller v. State, 846 So. 2d 631, 633 (Fla. 4th DCA 2003) (trial court erred in summarily denying defendant’s motion for postconviction relief where defendant claimed that his counsel was ineffective for failing to advise him that his convictions violated double jeopardy).

Because the defendant has shown all three elements to satisfy the Novaton exception, he has proven that his plea was involuntary and that a manifest injustice has occurred. See Nelfrard v. State, 34 So. 3d 221, 222 (Fla. 4th DCA 2010) (“Where a defendant seeks to withdraw a plea after sentencing, the defendant must prove that a manifest injustice has occurred. . . . Examples of situations where withdrawal is necessary to correct a manifest injustice include cases where the defendant proves that h e received ineffective assistance of counsel or where the defendant’s plea was involuntary.”). Manifest injustice also exists here based on the possible sentences if the defendant violates his probation.

Because all four offenses were considered together as part of the plea and sentence, we reverse and remand for the circuit court to vacate the defendant’s conviction and sentence on all four offenses and permit the defendant to withdraw his plea as to all four offenses. The state then may resume its prosecution of the defendant as to all four offenses.

Reversed and remanded.2

STEVENSON and TAYLOR, JJ., concur.

* * *

Appeal from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Mily Rodriguez-Powell, Judge; L.T. Case No. 07- 13177CF10A.

Jason T. Forman of Law Offices of Jason T. Forman, P.A., Fort Lauderdale, for appellant.

2 We conclude that the other arguments which the defendant raises in this appeal in support of his motion to withdraw plea are without merit, although those arguments now are moot because of our reasoning addressed above.

Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for appellee.

Not final until disposition of timely filed motion for rehearing.

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DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

January Term 2011

TONNY PRESIDENT,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 4D09-2776

[ June 22, 2011 ]

PER CURIAM.

Tonny President appeals a trial court order entered after remand, pursuant to President v. State, 981 So. 2d 673 (Fla. 4th DCA 2008). In that case, we directed the trial court to either conduct an evidentiary hearing or attach portions of the record conclusively establishing that appellant was not entitled to relief in a post-conviction sentencing challenge. In his post-conviction challenge appellant claimed that the trial court had erroneously imposed sixty-nine points for convictions which were later reversed and remanded for new trial, and ultimately nolle prossed, and that the trial court would not have imposed the same sentence if the scoresheet were corrected. See State v. Anderson, 905 So. 2d 111 (Fla. 2005).

On remand, the trial court did not conduct an evidentiary hearing, but rather summarily denied relief once again. The trial judge acknowledged that he was not the judge who had actually sentenced appellant almost seven years earlier, but noted that there was no rule barring him from concluding that the same sentence would have been imposed with a corrected scoresheet. The judge then pointed to the record, which showed that the sentencing judge imposed the maximum penalty of life in prison immediately after the verdict finding appellant guilty of robbery with a firearm. He concluded that this demonstrated that the judge would have imposed the same sentence even with a correct scoresheet, citing by contrast Graham v. State, 920 So. 2d 1262 (Fla. 4th DCA 2006).

In Graham, following the defendant’s conviction for possession of cocaine with intent to sell, the trial court sentenced the defendant to 59.925 months in prison, the lowest permissible prison sentence, although the maximum sentence for possession of cocaine with intent to sell, a second degree felony, is fifteen years in prison. We concluded that the record did not conclusively show that the same sentence would have been imposed under a correctly calculated scoresheet. The panel noted that the trial court had imposed the lowest permissible sentence calculated under the Criminal Punishment Code and that it was “not inclined to sentence Graham to the statutory maximum, and as a result, we cannot conclude that the trial court would have imposed the same sentence using a corrected scoresheet.” Id. at 1264. Graham should not be interpreted as holding that whenever a maximum sentence is imposed after a n erroneous scoresheet is filed, this establishes that the sentencing court would have imposed the same sentence with a corrected scoresheet.

Here, the trial judge ruled that the sentencing judge’s decision to order President’s life sentence to run consecutively to any other sentences he was then serving, and the fact that the sentencing judge made no mention or reference to the guidelines or the scoresheet at sentencing, provided further support for concluding that the sentencing judge would have imposed the same sentence even with a corrected scoresheet. However, the trial judge in this case did not attach any portions of the sentencing transcript to support his ruling, as they were not included in the state’s response attached to the judge’s order. However, even with those attachments, the record would not conclusively demonstrate that appellant would have received the same sentence using a corrected scoresheet.

Because we have already allowed the trial court an opportunity to attach portions of the record to refute appellant’s claim, we reverse and remand for either an evidentiary hearing or resentencing.

Reversed and Remanded with directions. TAYLOR, HAZOURI and GERBER, JJ., concur.

* * *

Appeal of order denying rule 3.850 motion from the Circuit Court for the Seventeenth Judicial Circuit, Broward County; Martin J. Bidwill, Judge; L.T. Case No. 01-18316 CF10A.

Tonny President, Chipley, pro se.

Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.

Not final until disposition of timely filed motion for rehearing.

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Third District Court of Appeal

State of Florida, January Term, A.D. 2011

Opinion filed June 22, 2011.

Not final until disposition of timely filed motion for rehearing.

No. 3D11-1406

Lower Tribunal No. 10-15043

Roger E. Ramos-Perez,

Appellant,

vs.

The State of Florida,

Appellee.

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

Roger Eduardo Ramos-Perez, in proper person. Pamela Jo Bondi, Attorney General, for appellee.

Before WELLS, SHEPHERD and EMAS, JJ.

SHEPHERD, J.

The defendant, Roger E. Ramos-Perez, appeals the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. For the reasons stated below, we reverse and remand.

The defendant entered into a plea agreement in which he admitted to violating his probation in exchange for a sentence of 366 days in state prison. After he was sentenced, the Department of Corrections forfeited 177 days of gain time he received in his original sentence. The defendant argues, in his post-conviction motion, the reinstatement of the 177 days of gain time will result in an increase of incarceration of almost six months, which would thwart the intention of his negotiated plea agreement—that he serve a total of 366 days in state prison. We find the defendant’s argument to be meritorious.

The Department of Corrections has the authority to forfeit all of a defendant’s gain time following a violation of probation. See § 944.28(1), Fla. Stat. (2010). “However, a defendant is entitled to have a plea agreement enforced if the Department’s forfeiture of gain time thwarted the intent of a negotiated plea.” Chase v. State, 57 So. 3d 898, 899 (Fla. 1st DCA 2011); see also Etienne v. State, 994 So. 2d 450, 452 (Fla. 3d DCA 2008). In this case, the forfeiture of the defendant’s gain time means the defendant will be facing a longer sentence than agreed, and thus, the defendant would be entitled to relief on this basis.

We, therefore, reverse the trial court’s summary denial and remand for the trial court to determine whether the record shows conclusively the defendant is entitled to no relief. See Fla. R. App. P. 9.141(b)(2)(D). If the record reflects the defendant was to serve a total of 366 days in state prison under the negotiated plea agreement, the trial court shall resentence the defendant in a manner that effectuates the plea agreement in light of the gain time forfeiture, or allow the defendant to withdraw his plea. See Hashem v. State, No. 3D10-2875 (Fla. 3d DCA June 1, 2011).

Reversed and remanded for further proceedings.

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Third District Court of Appeal

State of Florida, January Term, A.D., 2011

Opinion filed June 22, 2011.

Not final until disposition of timely filed motion for rehearing.

No. 3D10-2297

Lower Tribunal No. 98-33905

Timothy Sneed,

Appellant,

vs.

The State of Florida,

Appellee.

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

Timothy Sneed, in proper person.

Pamela Jo Bondi, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellee.

Before SUAREZ and LAGOA, JJ., and SCHWARTZ, Senior Judge.

LAGOA, J.

Timothy Sneed (“Sneed”) appeals the denial of his motion, filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse the trial court’s order and remand for further proceedings.

This case has followed a tortuous path from Sneed’s first trial in 2000 to his re-trial in 2005, and has continued with his subsequent unsuccessful attempts to receive the proper amount of credit for time served since his resentencing in 2006. At resentencing, the trial court orally announced that Sneed was entitled to “credit for all time served.” The written sentence reflects an award of 465 days credit.1

In April 2009, Sneed filed a Rule 3.800(a) motion arguing entitlement to a total of 2,746 days credit for time served in jail and prison prior to resentencing in 2006. In February 2010, the trial court granted Sneed’s motion; however, the order does not determine the amount of time awarded. In March 2010, the court entered a corrected sentence providing that Sneed be given credit for only 1,265 days. Subsequently, Sneed sought rehearing and clarification and also filed a motion to enforce the February order, asserting that the amount of credit awarded was incorrect and that he should receive an additional 1,481 days credit for time served. The trial court summarily denied Sneed’s motion to enforce.2

In appealing this denial, Sneed contends that the trial court erred in failing to award him the additional credit requested. Pursuant to this Court’s order, the State filed a response, conceding that Sneed is entitled to additional credit for time served. According to its calculations, however, the State asserts that Sneed may be

1 The original sentencing court awarded Sneed 765 days credit for time served.

2 This order was entered by a successor judge.

entitled to a total of 2,703 days credit, rather than 2,746 days that Sneed requests. Based on the State’s concession that Sneed is entitled to additional credit for time served, we reverse the trial court’s order. On remand, the trial court must review the record for a determination of the proper amount of credit for time served, which Sneed should receive. After this determination has been made, the trial court shall enter a corrected sentence.

Reversed and remanded with directions.

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Third District Court of Appeal

State of Florida, January Term, A.D., 2011

Opinion filed June 22, 2011.

No. 3D10-2147

Lower Tribunal No. 09-4670

T.H., a juvenile,

Appellant,

vs.

The State of Florida,

Appellee.

An appeal from the Circuit Court for Miami-Dade County, Orlando A. Prescott, Judge.

Carlos J. Martinez, Public Defender, and Daniel Tibbitt, Assistant Public Defender, for appellant.

Pamela Jo Bondi, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for appellee.

CONFESSION OF ERROR

Before SUAREZ, LAGOA, and EMAS, JJ.

PER CURIAM.

The juvenile, T.H., was charged with escape pursuant to section 985.721(3), Florida Statutes (2009). After an adjudicatory hearing, the trial court withheld

adjudication and sentenced her to community control. The State properly concedes that the trial court erred in denying the motion for judgment of dismissal because it failed to prove that T.H. was being “transport[ed] to or from any . . . secure detention facility or residential commitment facility.” § 985.721(3), Fla. Stat. (2009). Accordingly, we vacate the disposition below and remand for dismissal.

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Third District Court of Appeal

State of Florida, January Term, A.D. 2011

Opinion filed June 22, 2011.

Not final until disposition of timely filed motion for rehearing.

No. 3D10-1998

Lower Tribunal No. 04-19172

Steve Senelus,

Appellant,

vs.

The State of Florida,

Appellee.

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

Steve Senelus, in proper person.

Pamela Jo Bondi, Attorney General, and Nicholas Merlin, Assistant Attorney General, for appellee.

Before WELLS, SHEPHERD, and EMAS, JJ. SHEPHERD, J.

The defendant, Steve Senelus, appeals an order denying his motion for postconviction relief filed under Florida Rules of Criminal Procedure 3.850 on the ground the motion was successive. We remand for further proceedings.

The defendant was convicted of grand theft of a truck and trailer, and robbery for taking the contents of a briefcase that was inside the truck. On appeal, we vacated the conviction for grand theft under double-jeopardy principles and remanded for resentencing. See Senelus v. State, 944 So. 2d 493 (Fla. 3d DCA 2008). The defendant was resentenced on January 30, 2009.

The only motions the defendant has filed since his appeal are a petition for habeas corpus, alleging ineffective assistance of appellate counsel with this Court, and a motion to correct an illegal sentence under Florida Rules of Criminal Procedure 3.800 with the trial court. Because the defendant has not filed a prior Rule 3.850 motion alleging ineffective assistance of trial counsel, it was error for the trial court to deny the motion as successive. Thus, we reverse the order of denial and remand for an evidentiary hearing or for the attachment of record excerpts conclusively showing that the defendant is not entitled to any relief. See Fla. R. App. P. 9.141(b)(2)(D).

Reversed and remanded for further proceedings.

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