Ashley Bishop v. State

245 So. 3d 861

• Court: District Court of Appeal of Florida
• Decided: February 12, 2018
• Docket: 5D17-2497
• Status: Published

Opinion

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA FIFTH DISTRICT

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

ASHLEY BISHOP,

Appellant,

v. Case No. 5D17-2497

STATE OF FLORIDA,

Appellee.

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Opinion filed February 16, 2018

3.800 Appeal from the Circuit Court for Orange County, Leticia J. Marques, Judge.

Ashley Bishop, Sanderson, pro se.

Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.

PER CURIAM.

Appellant, Ashley Bishop, appeals the summary denial of his motion to correct an

illegal sentence, filed pursuant to Florida Rule of Criminal Procedure 3.800(a). In his rule

3.800(a) motion, Appellant alleged that the court erred in sentencing him upon a second

violation of probation to twenty years as an habitual felony offender without re-designating

him an HFO. The State properly concedes error in that the trial court’s record attachments do not show whether there was a re-designation of Appellant’s HFO status

during Appellant’s 2014 VOP resentencing and/or the current 2016 VOP resentencing.

See State v. Akins, 69 So. 3d 261 (Fla. 2011) (holding that HFO designation must be

restated at each resentencing to be applied); Wighard v. State, 71 So. 3d 170 (Fla. 5th

DCA 2011) (applying Akins and holding that HFO designation was lost when it was not

restated at VOP hearing). Absent an HFO designation, Appellant’s twenty-year sentence

exceeds the statutory maximum for a second-degree felony. Accordingly, we reverse

and remand this cause for the trial court to either attach refuting records or resentence

Appellant to a legal, non-HFO sentence.

REVERSED and REMANDED.

ORFINGER, TORPY and EVANDER, JJ., concur.