Carroll v. State

908 So. 2d 1172, 2005 Fla. App. LEXIS 13592, 2005 WL 2030315

Opinion

FLETCHER, Judge.

Horace Jones Carroll seeks to reverse a trial court order denying relief pursuant to Florida Rule of Criminal Procedure 3.850. We reverse the order denying post-conviction relief and remand for further proceedings.

This is one of those circumstances where resolution of the substantive issue [credit for time served] requires examining transcripts of two untranscribed hearings. The defendant has requested immediate release pursuant to a mitigated sentence. As in Fulcher v. State, 875 So.2d 647 (Fla. 3d DCA 2004), application of gain time and credit for time served to the mitigated sentence would produce the absurd result of immediate release, when it is clear that is not the result intended by the trial court. The state agrees that there remain issues of waiver and the need to determine the specific terms of the mitigated sentences. The state points out that review of the transcripts of the April 24, 2003 and May 1, 2003 hearings are necessary to determine the terms of the mitigated sentence.

As the trial court failed to attach the necessary transcripts, we reverse and remand for further proceedings, and to attach the documentation necessary to refute the defendant’s claim.

Reversed and remanded.