Cossio v. State

10 So. 3d 689, 2009 Fla. App. LEXIS 4182, 2009 WL 1212118

Opinions

ON MOTION FOR REHEARING

COPE, J.

On consideration of the appellant’s motion for rehearing, 'the court grants the motion, withdraws the per curiam affir-mance, and substitutes the following in its place.

This is an appeal of an order on the motion of defendant-appellant to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a), claiming entitlement to additional credit for time served.

Defendant claims that he was arrested on January 17, 2008, in Miami-Dade County for a crime committed in Miami-Dade County. He alleges that he was also arrested at that time on an outstanding warrant for violation of probation (“VOP”) issued in Monroe County. Upon disposition of the VOP, the trial court in Monroe County awarded defendant credit for time served for part of the time defendant was in jail in Miami-Dade County, stating that he was not arrested on the VOP warrant until April 30, 2008.

* The trial court refused to grant credit for the entire time finding that defendant was not entitled to credit for time served for a separate crime committed in Miami-Dade County. The trial court failed to attach documents establishing the arrest date for the VOP warrant.

Because the record now before us fails to conclusively refute the appellant’s claim, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the postconviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief. See Fla. R. App. P. 9.141(b)(2)(D) (requiring reversal by this court unless the record shows conclusively that the defendant is entitled to no relief).

Reversed and remanded for further proceedings.

RAMIREZ, J., concurs.

At the time of sentencing, the court granted credit for time served from April 22, 2008. The reason for the April 22 date is not clear, but is immaterial. The defendant claims his credit should run from January 17.