Cruz v. State

971 So. 2d 949, 2007 Fla. App. LEXIS 20497, 2007 WL 4482206

Opinion

PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a). In his motion, Cruz alleges that he was sentenced to fifty years in prison for committing a second-degree felony, unarmed robbery, when the correct sentence should have been fifteen years in prison. The trial court summarily denied Cruz’s motion, stating that he was convicted of a first-degree felony, robbery using a deadly weapon or firearm, in violation of section 812.13(2)(a), Florida Statutes, and thus was properly sentenced to fifty years in prison. The trial court did not attach the judgment or the sentence to the order summarily denying Cruz’s motion.

Cruz has raised a facially sufficient claim for Rule 3.800(a) relief that the trial court, by summarily denying the motion, has failed to conclusively refute. On remand, if the trial court again enters an order denying the post-conviction motion, the trial court shall attach written portions of the record conclusively refuting the defendant’s claim. 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.