Blackburn v. State

Opinion

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

IN THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

ROSE LYNN BLACKBURN, ) ) Appellant, ) ) v. ) Case No. 2D16-2926 ) STATE OF FLORIDA, ) ) Appellee. ) )

Opinion filed May 12, 2017.

Appeal pursuant to Fla. R. App. P. 9.141(b)(2) from the Circuit Court for Lee County; Leigh Frizzell Hayes, Judge.

Rose Lynn Blackburn, pro se.

BADALAMENTI, Judge.

Rose Lynn Blackburn appeals the summary denial of her motion for

correction of jail credit, filed pursuant to Florida Rule of Criminal Procedure 3.801. We

affirm the trial court's summary denial of Ms. Blackburn's motion to the extent that the

trial court correctly determined Ms. Blackburn waived 266 days of her jail credit,

pursuant to the trial court's Order of Revocation of Drug Order Probation.

However, because Ms. Blackburn's motion claimed entitlement to an

additional 59 days beyond the 266 days which she waived, and because her entitlement to these 59 days is not conclusively refuted by the documents attached to trial court's

summary denial of her motion, we must reverse the summary denial in part and remand

for additional consideration. See Fla. R. Crim. P. 3.850(f)(5) ("If the denial is based on

the records in the case, a copy of that portion of the files and records that conclusively

shows that the defendant is entitled to no relief shall be attached to the final order.");

Cole v. State, 146 So. 3d 1259, 1260 (Fla. 2d DCA 2014).

Affirmed in part; reversed in part; remanded with instructions.

KHOUZAM and CRENSHAW, JJ., Concur.

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