Bermudez v. State

District Court of Appeal of Florida

Bermudez v. State

224 So. 3d 305, 2017 Fla. App. LEXIS 11060, 42 Fla. L. Weekly Fed. D 1688

CourtDistrict Court of Appeal of Florida

DecidedAugust 2, 2017

DocketNo. 3D17-818

StatusPublished

Cited by1 cases

This text of 224 So. 3d 305 (Bermudez v. State) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bermudez v. State, 224 So. 3d 305, 2017 Fla. App. LEXIS 11060, 42 Fla. L. Weekly Fed. D 1688 (Fla. Ct. App. 2017).

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Opinion

SUAREZ, J.

Javier Bermudez appeals from the summary denial of his motion to correct an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800. We reverse.

Bermudez asserts that the sentencing transcript will show that he did not waive credit for time served. Neither the transcript nor the sentencing documents are in the record on appeal. See Cozza v. State, 756 So.2d 272, 273 (Fla. 3d DCA 2000) (“Where a defendant’s waiver of credit for time served is not clearly shown on the record, it will not be presumed.”); Isaac v. State, 992 So.2d 304 (Fla 3d DCA 2008) (same).

On appeal from a summary denial, this Court must reverse unless the post-conviction record shows conclusively that the appellant is entitled to no relief. See Fla. R. App. P. 9.141(b)(2)(A), (D). Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the post-conviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.

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SUAREZ, J.

Javier Bermudez appeals from the summary denial of his motion to correct an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800. We reverse.

Bermudez asserts that the sentencing transcript will show that he did not waive credit for time served. Neither the transcript nor the sentencing documents are in the record on appeal. See Cozza v. State, 756 So.2d 272, 273 (Fla. 3d DCA 2000) (“Where a defendant’s waiver of credit for time served is not clearly shown on the record, it will not be presumed.”); Isaac v. State, 992 So.2d 304 (Fla 3d DCA 2008) (same).

On appeal from a summary denial, this Court must reverse unless the post-conviction record shows conclusively that the appellant is entitled to no relief. See Fla. R. App. P. 9.141(b)(2)(A), (D). Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the post-conviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.

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Bluebook (online)

224 So. 3d 305, 2017 Fla. App. LEXIS 11060, 42 Fla. L. Weekly Fed. D 1688, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bermudez-v-state-fladistctapp-2017.

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